Dunn v Corporation of the City of Noarlunga

[1989] HCATrans 193

~ ~ :; ... ,~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A28 of 1989

B e t w e e n -

MARTIN GODFREY DUNN

Applicant

and

CORPORATION OF THE CITY

OF NOARLUNGA

Respondent

Application for special

leave to appeal

MASON CJ DAWSON J GAUDRON J

Dunn

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 23 AUGUST 1989, AT 4.13 PM

Copyright in the High Court of Australia

A1Tl6/l/DR 1 23/8/89

MRS. TILMOUTH:  May it please Your Honours, I appear with

MR R.C. BEASLEY, for the applicant in this case.

(instructed by Duncan Groom Wilson)

MR B. LANDER, QC:  May it please the Court, I appear with my

learned friend, MR G. MUECKE, for the respondent.

(instructed by Lawson Downs)

MR TILMOUTH:  May it please Your Honours, our argument in this

case is that the Full Court has adopted, as not

being without error, a judgment by His Honour the

trial judge which, we submit, contained three basic

errors. If the Court pleases, those errors are at

pages 27 and 28 of the appeal book, if I could take

Your Honours to that immediately and submit what we

say are the errors which are evident there on the

face of His Honour's ruling.

At page 27, Your Honours, His Honour appears to

be discussing the issue of whether there was a

breach of the duty having,it seems, assumed or

accepted there was a duty to the applicant in this

case by the respondent employer. His Honour said

this, at the top of page 27:

To determine whether the risk of injury to
the workman was foreseeable, I have had regard

to the evidence of Beard who on the contrary

believed that it was most imporbable that a

injury would occur of the kind suffered whilst

digging in a confined space and although I have

found that the injury occurred on straightening,

it seems, having regard to Beard's evidence,

that it was a most unlikely event and is not an

injury that could reasonably be foreseeable.

And Your Honours will then see a little later at

lines 11 and 12, His Honour also found:

in the enterprise or that the risk of the

particular injury or any injury was reasonably

foreseeable.

Now the error, and the first error, we submit,

implicit in that is that His Honour has confused

the issue of causation with the issue of foreseeability.

Dr Beard's evidence, Your Honours, was directed to

whether an earlier event in February of the year

in question, or in April, was the major injury and it
was also directed to attempting to pin-point exactly

in point of time when the injury occurred.

Dr Beard thought the probability was that it

occurred on straightening up but Dr Beard's evidence,

Your Honours, had 1w'cl1ing to do with whether or not

a lower limb injury, in the crouched position in the

A1Tl6/2/DR	2	23/8/89
Dunn

culvert in which the applicant was, was likely or foreseeable or not. In fact, on the whole of the

evidence it was plainly foreseeable that there could

be an injury of the lower limb variety. So, first

error, we submit, is a confusion between causation

and what was foreseeable. Secondly, Your Honours,

we submi~ there was an error in this passage and this

is about line 8:

I have also had regard to evidence of the

plaintiff and also of Tilbrook that similar

work had been performed over many years

without injury and I find

et cetera. Now, the error there, we submit, is an

error of fact, it is conceded. But, for the reasons

advanced by Justice Legoe, which I do not read, at

page 54, primarily the evidence given by the

applicant and Tilbrook related to other types of

activities in pipes and, in any event, Your Honours,

even if that is not a good point, the fact of the

matter is that the plaintiff had suffered injuries,

in any event, in his work. That is evident from the

top of page 20 and page 21. Without reading it,

the evidence at page 20 second line, is that he had

injuries beforehand - page 20:

It happens to practically everybody.

And at page 21, also in the indented passages:

And that you had had a problem of twisting

your left knee three and a half years prior

to the April 1985 injury.

A. I don't know about it being left knees

that's a fair way back to remember, you do

damage your knees, there is no time lost or

anything like that.

And the further answer at lines 11 and 12:

That could be, as I said these things are

always happening.

And so on. So, there was evidence, in any event,

irrespective of the characterization of the type

of work involved that there had been prior injuries.

The third error, we submit, is this, may it

please Your Honours:  Your Honours will see, again

at page 27 line 11, His Honour said:

I find that there was nothing inherently dangerous in the enterprise -

A1Tl6/3/DR	3	23/8/89
Dunn

and then I read that other passage that follows.

Now, in our respectful submission, the phraseology

"inherently dangerous" is totally inappropriate.

As His Honour Justice Legoe, in his dissent, said:

"it is more appropriate to an occupier's liability
standard". His Honour Justice Bollen, who wrote

the leading judgment for the majority, said that

that was simply His Honour excluding one potential

factor and that it was, perhaps, an infelicity

but it was not an error of law.

That, if the Court pleases, may be, perhaps, accepted if that phrase stood alone but if Your Honours

go to page 28, in the very last passage in which

His Honour proceeds to dismiss the claim, His Honour

has said this - at the bottom of page 28 line 37:

The plaintiff has not satisfied me that there

was anything inherently unsafe in the system or

method of work required to be carried out by

the plaintiff. I find that the defendant has

not failed in any duty which it owed to the

plaintiff.

Now, that expression, "inherently unsafe", in my respectful submission, coupled with the earlier

passage, "nothing inherently dangerous" are

expressions which are totally inappropriate to a

case of this kind and apply a totally different test

than the test of the duty of care and whether there

is a breach of that duty as between employer and

employee.

If the Court pleases, we submit that those

phraseologies indicate, apart from the other two
matters I put to Your Honours, that His Honour has

completely misunderstood the principles which applied.

Now, if the Court pleases, the vice, we submit, and

that is, from the point of view of the Full Court,
is that the Full Court has said that His Honour did

not apply any incorrect test or tests and that

His Honour was right in the way he approached the

case and that he was right, also, in the conclusion

he reached.

Your Honours, I do not need to read the passages

but they are at pages 39, 41 and 42 of His Honour

Justice Bollen.	The Full Court did not say, "Well,
His Honour made a wrong test,	but the result would
not have been any different!'.	The Full Court said

that His Honour was right and it is our submission

that special leave is required, or necessary, to

correct the adoption by the Full Court of what, we

submit, is obviously a series of wrong tests in the

three ways I have elaborated them.

A1Tl6/4/DR	4	23/8/89
Dunn

The final matter I put is this, if the Court

pleases: in this case the applicant proved that

there was an alternative practical system of work,

that is, that was the flushing machine that Mr Davey

spoke about. That evidence was accepted by

His Honour the trial judge and it was also proved

that the respondent council, itself, had a machine

available - a suction machine rather than a pressure

machine. The point there is, if the Court pleases,

on both cases there was alternative machinery

available but there was no explanation furnished by

the respondent as to why that machinery was not used

rather than sending the applicant down into this

clearly confined and cramped space.

In our submission, the principles which apply

are that once that alternative system is proved and

it is reasonably available an onus shifts to the

respondent employer to demonstrate that it was

inapplicable or impracticable or too costly. That

issue, if the Court pleases, was accepted by the

trial judge, that there was a practical system

and, in our submission, that should have meant that

the onus should have been discharged on the employer

to demonstrate that it was impractical; the employer

did not do that and the majority in the Full Court

simply did not address that other issue.

We would submit that that is the second limb,

apart from the three errors I have endeavoured to
outline to the Court, why this is an appropriate

case for special leave.

MASON CJ:	Mr Tilmouth, you do not make any complaint of the
statement of principle on page 41 of Mr Justice Bollen's
judgment, going over to page 42. What you complain
of is, in effect, a failure to appreciate errors in
the judgment of the trial judge.
MR TILMOUTH:	That is right. The first answer is, Your

Honours,	we accept the statements of principle by
His Honour but the danger is, of course, in our

submission, that the Full Court has said that

His Honour the trial judge was not wrong.	It has
adopted what the trial judge has said.

MASON CJ: Yes, but I was thinking in terms of the precedent

value of judgments in this case. Lawyers are not

going to look to the judgment of the trial judge

as an exposition of principle, they will be looking

to the judgment of the Full Court.

MR TILMOUTH:  That is true, but if the Court pleases, His Honour,

at page 41, that is, Justice Bollen, has talked about

"inherent danger" - line 19 and line 20 and, indeed,

line 21 - - -

A1Tl6/S/DR	5	23/8/89
Dunn

MASON CJ: Yes, but he has done so on the context of stating

that the trial judge, in his view, was not referring
to "inherent danger" as a test but, rather, as a

factor for consideration.

MR TILMOUTH:	Yes, so much is true but, of course, more would be gleaned from the dissenting judgment of
Justice Legoe, in that respect.  I acknowledge that,
if this was, with respect, what Your Honour means,
that the danger of a wrong precedent being adopted by
a trial judge is not so evident because, on the face
of the documents, the misdirections, at first
instance, are not there.  That, of course, is true
to an extent but the fact remains, if the Court pleases, the Full Court has said that His Honour the
trial judge was not wrong.

If the Court pleases, it is true, I suppose,

that some trial judges do not go back to first

instance judgments but these judgments are, at times,

reported, including district court judgments and,

in our respectful submission, in any event, because

of the dissenting judgment of His Honour Justice Legoe
and, because wha4 we submit, are obvious errors in
the passages I have referred to, there is a danger -

the exact danger, that this case will be used as a

precedent and that wrong principles will result. If

the Court pleases.

MASON CJ: Yes, thank you, Mr Tilmouth. The Court need not

trouble you, Mr Lander. In the opinion of the Court,
the decision of the Full Court reflects no error of

general principle. The case is, therefore,

inappropriate for the grant of special leave and

the application is refused.

MR LANDER:	And I apply for costs.
MR TILMOUTH:	I cannot oppose that, if the Court pleases.
MASON CJ:	The application is refused with costs.
AT 4.25 PM THE MATTER WAS ADJOURNED SINE DIE

AlT16/6/DR	6	23/8/89
Dunn