Doumit v Jabbs Excavations Pty Ltd

[2010] HCATrans 144

[2010] HCATrans 144

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S334 of 2009

B e t w e e n -

FADI DOUMIT

Applicant

and

JABBS EXCAVATIONS PTY LTD

Respondent

Application for special leave to appeal

FRENCH CJ
HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 MAY 2010, AT 11.40 AM

Copyright in the High Court of Australia

MR A.S. MORRISON, SC:   May it please the Court, I appear with my learned friend, MR A.D. CAMPBELL, for the applicant plaintiff.  (instructed by Gerard Malouf & Partners)

MR R. WEBER, SC:   If it please the Court, I appear with my learned friend, MR J.A. JOBSON, for the respondents.  (instructed by McCulloch & Buggy Solicitors)

FRENCH CJ:   Yes, Mr Morrison.

MR MORRISON:   Your Honours, there are two substantial issues upon which the applicant relies.  The first is whether the Court of Appeal in New South Wales has substantially changed the duty of care owed by an employer to an employee contrary to the approach mandated by this Court.  The second is whether by a majority in finding that a tracked vehicle is not a motor vehicle, the Court of Appeal has wrongly interpreted a longstanding provision under which a substantial number of tracked vehicles have for a long time been registered and insured without a proper legal basis.  Could I just note at this point that the definition which applies in New South Wales is a definition which dates back to 1909, it is the identical definition in the Australian Capital Territory and there is a similar, though not quite, identical provision in Queensland, but in all jurisdiction in a Australia tracked vehicles have been registered and insured as a matter of course.

Your Honours, in respect to the duty of care, it is clear that the applicant plaintiff was on the building site in the vicinity of his supervisor when struck by a large reversing excavator of about 35 tonnes.  He suffered serious injury and his supervisor who had no one else to supervise was watching the machine and not him.  The excavator driver had a large blind spot behind him and was effectively reversing blind.  He did not see the applicant before running him over.  The system of work consisted, on the employer’s version, of having told the employee to keep out of the way and, on the employee’s version, of knowing that he should keep out of the way in any event. 

The only safety device provided was the beeping of the machine which occurred when the machine was reversing or going forward and the applicant had been picking up debris at the rear of the machine for approximately two hours and hearing constant beeping and gave evidence which was relevantly unchallenged that he had become inured to the sound of the beeping and given that he was struck on the right leg by the right rear track of the reversing machine, it seems a reasonable inference he was not facing towards the machine at the time he was struck.

FRENCH CJ:   Can you point to a part of the judgment of the Court of Appeal where they have misstated the relevant principles or do you simply say that is to be inferred from the way in which they have applied principles?

MR MORRISON:   No, your Honours, it was expressly contrary to principle.  Justice Young said, in page 105 of the application book at about line 50, paragraph 107 of the judgment, and Justice Handley agreed with him in paragraph 112:

it was not reasonably foreseeable that a person would depart from instructions and stand in the blind spot.

Not reasonably foreseeable.  This Court said in McLean v Tedman (1984) 155 CLR 306 at 311:

it is not an acceptable answer to assert that an employer has no control over an employee’s negligence or inadvertence.  The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. 

This system of work catered for neither inadvertence nor for negligence on the part of employees and the unchallenged evidence, as I have said, was that he had become inured to the sound over the preceding two hours.  The Court of Appeal’s decision stands in contrast to the views of a differently constituted Court of Appeal in Conceicao v Visypack Operations, and we have given your Honour the material in relation to that.  This Court has also repeated what had been said in McLean v Tedman in the more recent decision of Czatyrko v Edith Cowan University (2005) 79 ALJR 839, paragraph [18] and in particular at paragraph [12] in the High Court’s decision it was said:

the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.

Has to be part of the employer’s duties.  So our submission is that the finding in the Court of Appeal by the majority that this injury was not foreseeable and the respondent’s submission that it was not foreseeable flies both in the face of human experience and in the face of very longstanding and repeated authority in this Court.  What occurred, in respect of telling an employee to look after himself and keep out of the way, is no discharge of the high duty of care required of employers.  Your Honour, that point can be illustrated by a recent single judge decision which we have provided your Honours, Ralston v Bell [2010] NSWSC 245, a decision of Justice Hislop, where his Honour does not appear to have been referred to the decision of this bench of the Court of Appeal, that decision is only a few week’s old.

There the plaintiff succeeded in an action for personal injury when working on a construction site when an unregistered mobile elevated work platform or boom-lift vehicle collided with him.  His Honour having referred to longstanding authority which did not include Doumit, applied the traditional duty of care and said that if driving blind you needed to take positive steps for workmen’s safety – that is at paragraph 47 – such as using a spotter.  He found no contributory negligence.  That decision cannot stand with Doumit, nor can the Doumit stand with the decision of a different bench of the Court of Appeal in Conceicao. 

FRENCH CJ:   In this case, of course, there was the beeping that sounded when the vehicle was in motion.

MR MORRISON:   Whenever it was in motion, whether going backwards and forwards. 

FRENCH CJ:   Then there is a judgment that you are advancing, that, in effect, notwithstanding that, it is part of the employer’s duty to take account of the possibility that a worker might (a) become inured to or (b) disregard that sound?

MR MORRISON:   Yes.

FRENCH CJ:   Is that a decision which involves a question of principle or just a question of application of principle as to what was sufficient in the circumstances to deal with the possibility of inadvertence or carelessness by a worker?

MR MORRISON:   Justice Ipp did not deal with it as a question of principle but the majority in the Court of Appeal dealt with it as a question of principle by saying that a worker’s inadvertence or negligence is not foreseeable.  That raises it to a question of principle and we say it is so manifestly wrong as to call for this Court’s intervention.

BELL J:   I wonder, Dr Morrison, if that is to not read Justice Young’s judgment as a whole.  His Honour earlier sets out the issues that were live at trial.  As I understand it, there was a heated contest concerning the position of the plaintiff at the time of the accident.  Then his Honour at application book 94, paragraph 58 discusses a submission put on the hearing of the appeal which included, as I understand it, an assertion that the primary judge had failed to consider the submissions concerning a safe system of work.  When one comes to the statement that his Honour makes at paragraph 107 on which you place reliance, it is as though you are suggesting that by that submission that his Honour was not mindful of considerations of the obligation of an employer to provide a safe system, rather, one finds a rejection of a contention that in the circumstances there was a falling short of the standard of provision of a safe system surely?

MR MORRISON:   What his Honour does, we would respectfully say, is to find there is a duty of care, which is perfectly obvious in any event, but when he comes to the question as to why this system failed in this case – and it should be borne in mind that her Honour at first instance said at page 45 of the application book at line 43 that the system obviously failed but then found no breach of duty – his Honour really seems to take the same course as her Honour at first instance.

BELL J:   But if one goes to application book 96 at paragraph 71, his Honour refers in terms to McLean v Tedman.  Do you take issue with his statement of the principle in that paragraph?

MR MORRISON:   What we say about that is no, what his Honour did was to correctly state the principle, but then when he comes to talk about the application of foreseeability, he simply makes a statement which is inconsistent in law and that is his principle reason for rejecting the applicant’s case.  It cannot be the case on a Shirt calculus that an employer’s duty to an employee is discharged by simply telling the employee to keep out of the way.

FRENCH CJ:   That was not the only measure that was taken, though, was it?  There was the warning sound from the excavator.  The combination of that and the warning, the judge then makes his judgment on the basis of that factual complex, does he not?

MR MORRISON:   But the problem about that is that that means that, in effect, since the warning sound did not happen only when the vehicle was reversing, the warning sound was effectively useless as a warning of imminent risk.  If it occurred when the vehicle was going forward as well as when it was going back, how does that assist the employee who is not looking constantly at the vehicle to know when it is reversing towards him and when he is, self-evidently, working, picking up debris in its immediate vicinity.

BELL J:   His Honour correctly stated the principle as you acknowledged, I think, a little earlier.  He went on to conclude that the primary judge’s fact finding had not miscarried, application book 98, paragraph 81.  He had earlier at paragraph 79 on that page summarised the primary judge’s findings concerning the adequacy of warnings and the like.  These submissions are all directed to a review of the conclusion to be drawn from the facts that her Honour found, surely? 

MR MORRISON:   But if his Honour’s findings are based upon a finding that an employee’s inadvertence or negligence is not foreseeable, and it appears that it is, then that is not an acceptable starting point and is contrary to what this Court has mandated as the basis for the decision.  So it is all very well to go down the path of looking at it as a factual issue, but the starting point has got to be an acceptable system of care takes into account the possibility of thoughtless or inadvertence. 

Can I pass on then to the question of the definition of “motor vehicle”, and I have already pointed out that this definition has wider implications than just New South Wales.  It is self‑evident that, as Justice Young said in the Court of Appeal, tracks are driven by wheels, contrary to what Justice Ipp said below.  He clearly and self‑evidently misunderstood the evidence he was himself quoting.  The rollers do not drive the tracks, the wheels do, but in any event rollers are by dictionary definition wheels in any event, they are mounted on axels.  The consequences are quite significant. 

Does this mean that a person driving a tracked vehicle on public roads even if transporting passengers on a tracked bus between Perisher and Charlotte Pass does not have to have a driving licence?  Does it mean that there is no third party insurance cover for that vehicle, even though for many decades there has been both registration and insurance of those vehicles?  There does not seem to be any great rush on the part of the RTA to refund the large number of tracked vehicles which drive on road or road related areas or, for that matter, by third party insurers to refund the insurance premiums they have been receiving for decades in respect of vehicles which the majority in the Court of Appeal held did not have to be registered.

HAYNE J:   How does this issue relate to the first issue?  That is, do we get to this second issue if the first issue were to be resolved against you?

MR MORRISON:   We do get to this, in one sense, in that whether or not this is a motor vehicle accident as distinct from a work accident affects the damages, but it may also have some implications in respect of the duty of care, because on the authorities in respect of driving, to be driving whilst unable to see in the direction you are travelling has very significant implications in respect of the driver’s duty, and whereas if it were a work accident simpliciter and the only responsibility lay in respect of the supervisional system, that would be one thing, but in this case we say the driver himself, albeit another employee of the same employer, owed a duty as driver because this was a motor vehicle and a motor vehicle accident.  So it does affect the duty of care.  So the two matters are linked both in terms of damages but also in respect of the way in which the duty of care is to be dealt with.  So the two matters should be tied together.

FRENCH CJ:   I am sorry, I am not absolutely clear on that.  How does the statutory definition impact on the common law duty?

MR MORRISON:   Because in respect of a motor vehicle accident, regard has to be had by the court in allocating responsibility to the very high potential for injury caused by a motor vehicle.  The fact that you are driving a 35‑tonne vehicle and you cannot see where you are travelling gives a particular responsibility to the driver over and above the responsibility which falls upon the employer simply in respect of the system of work and the need to care for employees.  So we say that the motor vehicle aspect adds to the duty of care because a motor vehicle is involved.  Your Honours, we would respectfully submit that these are both significant matters of public interest warranting the attention of this Court, and ‑ ‑ ‑

FRENCH CJ:   I am sorry, I did not quite understand it.  When you say “adds to the duty of care”, do you say there is a statutory standard which informs the common law duty?  What do you mean by that and how do you get there?

MR MORRISON:   No, your Honours.  The common law duty in respect of motor vehicles has always weighed in account the fact that in respect of the relationship between a pedestrian and a driver, the pedestrian’s duty is only to himself.  The driver’s duty ‑ ‑ ‑

FRENCH CJ:   That does not turn on the particular statutory definition, does it?

MR MORRISON:   No, it does not.  It turns on whether or not this is a vehicle, I suppose, in fact.

FRENCH CJ:   Yes, that is why I just cannot quite understand the link between the liability issue and the definition.

MR MORRISON:   That in part also the fact that that higher duty of care in respect of drivers arises under a statutory scheme and the argument here is that the statutory scheme does not apply is a significant link, because if one goes back to the authorities in respect of how the high standard of care derived, certainly in the views of Justice Kirby when he was President of the Court of Appeal in New South Wales, it is perfectly clear that the existence of the statutory scheme was one of the drivers in determining how the relationship between pedestrian and driver ought to be determined and where the relative responsibilities were.  So it does weigh into account in

that respect.  We would respectfully say there are matters of significant public interest at issue on both counts.

FRENCH CJ:   Thank you, Mr Morrison.  We will not need to hear from the respondent.

The applicant for special leave suffered injury when the tracks of an excavator being operated in connection with demolition work ran over his right leg while reversing.  The primary judge found that the applicant’s employer had not failed to provide a safe system of work and there had been no act of casual negligence by the driver of the excavator.

Contrary to the submissions for the applicant, it is apparent that the decision of the Court of Appeal involved the application of settled principle and turned upon its own facts.  A question of statutory interpretation was raised in relation to the characterisation of the excavator as a motor vehicle, however, in our opinion, that issue would only arise if the applicant were otherwise successful in his contentions as to liability.

Special leave will be refused with costs.

AT 12.00 PM THE MATTER WAS CONCLUDED