Dover v H Litis Pty Ltd

[1996] HCATrans 327

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P6 of 1996

B e t w e e n -

RUSSELL WAYNE DOVER

Applicant

and

H LITIS PTY LTD trading as CARLISLE SUPERMARKET

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 3.26 PM

Copyright in the High Court of Australia

MR P.M. NISBET, QC:   May it please the Court, I appear with my learned friend, MR R.J. BUTCHER, for the applicant.  (instructed by Butcher Paull & Calder)

MR R.E. COCK:   May it please the Court, I appear with my learned friend, MS C.J. THATCHER, for the respondent.  (instructed by P. Panegyres, Crown Solicitor for the State of Western Australia)

DAWSON J:   Yes.

MR NISBET:   Your Honours, this Court said in Bankstown Foundry v Braistina at page 304 at about halfway down the page:

Special leave to appeal was granted to the appellant in the light of a submission that the members of the Court of Appeal who formed the majority had formulated the law governing the duty of care resting on an employer to provide a safe system of work in a manner which was apt to mislead trial courts. 

In this case you have a statement from the Full Court of the Supreme Court of this State by his Honour Justice Rowland which is at application book, page 30, lines 35 to 40 and at another passage I will take the Court to directly, if your Honours will permit me, which, in our respectful submission, states the duty in these terms:

It seemed not to be in issue that howsoever the task of getting the large refrigerator up a narrow staircase and whatever the equipment supplied, care is called for.  It seems to me that an employer is entitled to rely upon the discretion of experienced workmen in deciding for themselves the best way to tackle the task in hand.

And over the page at line 15 or so:

It may be that in some circumstances a better system can be envisaged for any particular job, but there comes a time when an employer is bound to rely upon the good judgment of experience and, as both of these men were, trained operators who were experienced in lifting and dealing with the carriage of heavy and unweildy items.  In my view, the appellant fails on the question of causation.

And that, of course, was supported by his Honour Justice Franklin in the Full Court with his Honour Justice Murray being the minority.

KIRBY J:   You might have a point on this and there may be a mistake at this point but your problem is causation, is it not?  If the real cause of your client’s injury was the slip then it really is a purely accidental factor which a different trolley would not have necessarily prevented.  Your problem, it seems to me, is causation.

MR NISBET:   Your Honour, that is the way in which the trial judge approached it and that is the way in which the majority in the Full Court approached it but, with respect, we would adopt the approach of Justice Murray in the minority.  If it is a problem of causation then the causal connection between the applicant’s injury and the respondent’s negligence is not broken by the co‑worker’s knee slipping off a step and failing to lift.  The causal chain is, in our submission, that which was propounded by Justice Murray, and it goes like this:  in the event that these two men - and we should bear in mind that it took four to lift this heavy refrigerator freezer on to the back of the delivery utility, one of whom was the employer, Mr Litis - only two are then sent out to deliver it to the place in Kalamunda where it was to go, then in that instance if there are insufficient people on hand to perform the task, and then if the assistant who was meant to be lifting while the applicant was pulling, failed to lift at the appropriate time, then it was entirely foreseeable that that huge weight of machine that was meant to be lifted into place, that the lifter, in this case the applicant, would sustain an injury if the system failed. 

We would suggest, with respect, that the causal connection is not the slipping of Daley’s knee which was identified by the trial judge and Justice Rowland in the Full Court, the causal connection is that the applicant did not hear the warning that was apparently spoken by the assistant that he was not lifting when the applicant was pulling this weight up the stairs.  Alternatively, had a stair‑climbing trolley been provided, that would have likewise lessened the risk of injury and, more to the point, if a third person had been assigned by the employer to assist the workers to get this huge mass up this narrow staircase, the third person could have alternatively assisted in the lifting; alternatively have been there to supervise the activity so that the slipping of the knee which is what each of the trial judge and Justice Rowland found to be the problem, whilst it may still have occurred, the third person co‑ordinating the lift would have ensured is that the applicant did not lift at the critical time, thereby taking this huge mass by himself and damaging his back as was the undoubted chain of events subsequent to the knee slipping.

So the analysis that we press upon this Court is that by Justice Murray who, at the application book at page 40, sets out the way in which he approached the matter.  The evidence was clear that a special stair‑climbing trolley had been requested but not supplied.  He goes on towards about line 30 that:

the use of the special trolley would certainly have improved the situation -

and at line 35, this passage appears:

Given the context of his observation and in particular his reference to the “lack of team work” in the system employed, properly understood Dr Gibson’s evidence was not that the provision of a stair climbing trolley would not have assisted to prevent injury, rather, the contrary was his view and this expert opinion supported the appellant’s experience about which he testified.

Then his Honour goes on, of course, to disclose that in his view as being an error and at page 41 put the question this way, your Honours, at line 5:

The question was not whether the provision of a stair climbing trolley would prevent Daley’s knee slipping off the step, but rather whether the provision of such a trolley would have assisted to prevent injury if the system should otherwise fail to ensure that the lifting effort of the two men was co-ordinated.  In my opinion, on the evidence, the only finding reasonably open was that the provision of the special trolley would have been of assistance in that regard.

And so we say that the causation argument that impressed the trial judge and his Honour Justice Rowland really fails to identify the correct happening as being not the fact of the assistant’s knee slipping but the failure of the respondent to provide a stair‑climbing trolley and a third person to assist in the task.

KIRBY J:   But it looks to be just a question of factual determination in a particular employment relationship.  What is the point that lifts it to a case for special leave?

MR NISBET:   Your Honour Justice Kirby, the difficulty, as we opened, is this, that decisions like this which have these expressions in them of Justice Rowland’s that we have just taken the Court to have the habit of being recited to trial courts, in this case ‑ ‑ ‑

McHUGH J:   But I cannot see anything in this judgment that is likely to be cited to trial courts.  It is just a question of fact, is it not?  What is the proposition that could be cited in other cases?

MR NISBET:   Well, your Honour, the proposition that could be cited in other cases, if I can take you back to application book, page 30, between lines 35 and 40:

an employer is entitled to rely upon the discretion of experienced workmen in deciding for themselves the best way to tackle the task in hand.

McHUGH J:   But that must be right, as a matter of fact, must it not?  Employers do not have to go out to every job in this line of work and vet the premises.  And there is the question of what is reasonable, and this whole idea of bringing another two men out or having a supervisor out there, I must say strikes me as rather far-fetched.  It is a question of reasonableness.  You have got to examine what the risk of injury is and whether it is reasonable to proceed in the way that they did.  But anyway ‑ ‑ ‑

MR NISBET:   Yes, we would not cavil with any of those observations that your Honour has just made.  Of course, that is the issue in everyone of these cases.  But the difficulty here is that you have a situation where these people certainly were experienced delivery drivers but they were faced with one of the largest of these implements that is apparently made for domestic use in Australia, and while exceeding the mass which two men ordinarily safely could lift, as was the uncontradicted evidence of Dr Gibson.  So then, bearing in mind those circumstances, you then have this statement by the Full Court that is likely to be cited to trial judges, in our respectful submission.

Look, for example, at the number of occupations where every day there are heavy lifting tasks to be performed, such as in the nursing profession, for example, in industry, and each time the question is whether the system of work is safe is the question which the trial court has to answer and they are faced with a statement like this of Justice Rowland’s here at application book, page 30, lines 35 to 40, then it can be said that whenever an employee has a length of experience in performing the task in hand, whenever the employee knows what the task is to do and has done it in similar situations on other occasions, then the employer’s duty somehow or other diminishes.  That is the problem that statements like this cause, in our submission.

In the event too, I should say - moving on to the second point - that this first point is overcome, then the Court has an interesting, with respect, second point, that then comes into play and that is this: is the meassure of damage in personal injuries the same whether the action is founded in tort or in contract and do the provisions of the contributory Negligence Acts, are they available to reduce damages where the claim is founded in both contract and tort?  But we accept that that point only comes into contention if the first point gets up.  We would refer the Court to our written outline and to the observations that we have made this afternoon.  Unless the Court has anything further - - -?

DAWSON J:   Thank you, Mr Nisbet.  Mr Cock, we need not trouble you.

The Court is of the view that any appeal in this matter would not enjoy a sufficient prospect of success to warrant the granting of special leave to appeal.  Moreover, the case turns on its own facts and does not raise any question of principle justifying special leave.  We would add that we would not read anything in the reasons of the majority in the Full Court as laying down any principle of general application in lifting cases.  Each such case will depend on its own facts and what is reasonable to expect of an employer on those facts.  Accordingly, special leave is refused.

MR COCK:   May it please your Honours, I move for an order that the applicant pay the respondent’s cost, to be taxed.

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

MR NISBET:   No, thank you.

DAWSON J:   Is refused with costs.

AT 3.41 PM THE MATTER WAS CONCLUDED