Goldsworthy v The Corporation of the City of Burnside

[1994] HCATrans 237

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A41 of 1993

B e t w e e n -

TREVOR JOHN GOLDSWORTHY

Applicant

and

THE CORPORATION OF THE CITY OF

BURNSIDE

Respondent

Application for special leave

to appeal

DEANE J
DAWSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

Goldsworthy 11/3/94

ON FRIDAY, 11 MARCH 1994, AT 9.46 AM

Copyright in the High Court of Australia

MR T.A. GRAY, OC:  May it please the Court, I appear with my

learned friends, MR R.A. CAMERON and MS M.A. PERRY,

for the applicant. (instructed by Paul Kirk

Roberts & Co)

MR D.A. TRIM:  May it please the Court, I appear with my

learned friend, MR D.H. GREENWELL, for the

respondent. (instructed by Norman Waterhouse)

DEANE J: Yes, Mr Gray.

MR GRAY: If the Court pleases, there are four features of

the plaintiff's case that I wish to identify before

coming to the special leave points, and they are

these: the plaintiff was engaged in an unsafe work

practice at the time of the incident. He and all

others, including his supervisor, John Brown,

habitually engaged in this same practice. He was

using an unmodified machine which was unstable, and

finally he had been given no instruction to avoid

the practice.

GAUDRON J:  You do not have findings of fact in your favour

on all those points, do you?

MR GRAY:  No, we have not. We have a finding in regard to

the first point that it was unsafe, Justice Bollen

at page 59. It was recognized by the employer to be unsafe, and the employer asserted he had given an instruction about it.

John Brown, the supervisor of the plaintiff,

was a person one would expect to be called as a
witness for the defendant, his employer. That was

for three reasons:  he was employed in a

supervisory capacity in regard to the plaintiff;

the defendant's counsel repeatedly said in the

course of the trial that John Brown would be called

and would say certain thing; and thirdly, the

defendant's counsel told the court and witnesses

from time to time that he was taking instructions

and information from John Brown.

So it was a very clear case where one would

expect the defendant to present John Brown as a

witness. He could have been expected to give

evidence as to each of the four matters that I have

identified, namely, that the employer knew the

practice to be unsafe. He apparently, it was said,

had given instructions about not conducting that

practice.

He, of course, as a supervisor knew the

practices were followed by his men, and himself. afterwards, and was in a position to see whether

Goldsworthy 11/3/94

the machine being used was unmodified or not.	He
had that opportunity and he was involved in,
allegedly, referring the machine that was being used in for modification prior to the incident.

So he was a very prime witness that one would

expect to be called for the defendant. He was not

called, despite the most unusual circumstances of his counsel repeatedly saying he would be called,

cross-examining on the basis of what he would say, identifying ''he" as the source of the material for
cross-examination, taking that forensic advantage,

and then not presenting him.

DAWSON J:  The trouble with that is you really cannot

establish how the accident occurred.

MR GRAY:  No, the plaintiff was unable to identify the

precise reason that he fell, if the Court pleases,

but critically the appeal court found that he was

using a - - -

DAWSON J: In other words, the lack of Mr Brown's evidence

cannot supply evidence?

MR GRAY:  It cannot supply evidence as to the precise

reason, but on a critical point the Full Court
found that a modified machine was being used, and

hence the complaint about lack of balance which

would explain what happened, was not open. Brown

was able to give direct evidence on that point.

Could we start with the proposition against

that background by that applying the rule in Jones

v Dunkel should have been applied and two

inferences should reasonably have been drawn.	The
first was that Brown's evidence would not have

supported the defence case; that is the first limb

of Jones v Dunkel. The second limb is that Brown's

absence could allow the Court - and should allow

the Court - to more readily accept the plaintiff's

evidence, where there was positive evidence on the

drawn in favour of the plaintiff. This did not issue, and allow inferences more confidently to be

occur. Such inferences were not drawn by either

the Appeal Court or by the trial judge.

GAUDRON J: Jones v Dunkel does not say that inferences must

be drawn.

MR GRAY:  No, it does not.

GAUDRON J: Only that they may. There is an evidentiary

threshold, is there not?

MR GRAY:	We accept that, but we say that - - -
Goldsworthy	11/3/94
GAUDRON J:	The minimum involves establishing how the

accident happened.

MR GRAY:  If the Court pleases, there are cases where a

plaintiff cannot say exactly what happened. But we

say that the procedure that has been followed here

was inherently unsafe and, on the defence case,

recognized to be so because they asserted, they

were given instructions it should not happen

because of the risk to safety. Effectively, the

man would cross an ordinary commercial street
walking backwards with an unstable lawn cutting

machine being pulled and approaching a gutter and

then a kerb. It was in that approach, and on his

case as he looked over his shoulder, that he fell.

DAWSON J:  But he did not trip on the gutter or the machine

did not overturn.

MR GRAY:  No, but he was wheeling backwards an unstable

heavy machine and approaching a gutter and a kerb. by the employer to be so. They recognized it to be unsafe and they asserted they had given an

instruction.

DAWSON J: But these are all questions of fact; where is the

special leave point?

MR GRAY:	The special leave point arises in this way, and if I could illustrate it in this way: critical to the Full Court's finding was that the machine was
modified and not unstable. At page 60 of the
application book the Court will find the critical reasoning of the majority. At line 15
Justice Bollen identifies the issue. He then
reasons machine 16/10 was not being used. There
were two machines: 16/10 had been previously
modified it was suggested and was not being used;
16/9, according to this jobsheet, a request was
made by John Brown on 2 February 1987, the
worksheet has a date, 4 February 1987, and it is
suggested, because of this document, the inference
is to be drawn the machine was modified on 4
February and hence on 5 February, the day of the
accident, the plaintiff must have been using a
modified machine.

Critical to that reasoning is that note

requested by John Brown, 2 February 1987, because

the workmen who did the work on the machine was

called, he was shown this worksheet and he could

not say when he received the machine to do the work

or when he did the work; this work docket did not

assist him to answer that question. Justice Bollen

over the page at page 61 says:

Goldsworthy 11/3/94

Machine No 164/9 came into the workshop

with a request made by the ganger Brown -

reling on that note. And then at line 10:

And Dankowski said that the machine would not

have been let out of the workshop until the
work on it had been done.

A combination of those matters allowed the conclusion that the machine had been worked on and was modified at the time.

Critical to that is the use of this, and the inference to be drawn from this workshop jobsheet.

Brown was not called. He could give evidence about

whether a request was made by him on that date or

not. Absent his presence his evidence would not

have helped the defendant. The plaintiff's

evidence, and that of other workers, was that he

was using an unmodified machine. What has happened

is that the Full Court has drawn an inference from

a business record in preference to sworn evidence

and.has not brought to account the failure of Brown

to be presented.

DAWSON J:	What did the trial judge find in this matter?
MR GRAY:	The trial judge found to the same effect as the

Full Court. The trial judge found that on the

probabilities the machine had been worked on on

that date and the trial judge failed even to allude
to Jones v Dunkel at all. So, on this pivotal

point in the case one has had an inference from a
business record preferred against the sworn

evidence of the plaintiff and other workers and

critically, Brown was not called to ask, for

example, "Was that the correct date? Was that date

put in the document months and months later?"

There are any number of possibilities about that

that could not be explored. But applying a

Jones v Dunkel inference, any inference that could

be drawn from that worksheet must be negated.

The point is compounded by two special

features, and why we say this is special, we come

to Your Honour Justice Dawson's point. The first

is that Brown attended the scene of the incident on

5 February and was able to say, were he called,

whether the machine that was being used was

modified or unmodified. He was not called. The

inference is that his evidence would not have

supported the defendant. The defendant's sworn

evidence was there and its reliability enhanced by

his absence. The trial judge in the appellate

court did not take that matter into account against

the defendant.

Goldsworthy 11/3/94

The second matter of aggravation is, in a page

of the transcript and I have passed it to the Court

and to my learned friends in Adelaide this morning,

page 168 of the original transcript, in the cross-

examination of the plaintiff it was put at line 13:

The first extension on either of these

machines was extended on 4 February 1987?---No

way possible.

That is what the Council records will show,

and not only that - bear with me for a minute - that is what Mr John Brown is going to say. Do you know Mr John Brown?---Yes.

The finding of the court is that both machines were modified by 4 February 1987 and therefore the

plaintiff's case failed. It was being asserted by

counsel that John Brown be called and say that the

first machine was modified on 4 February. The

judge and the appellate court have made a finding

directly contrary to counsel's assertion as to what

Brown would say. We say that counsel's conduct,

and they have done it on instructions in this case,

compels an inference to be drawn, and this case is

special for that reason and that a miscarriage of

justice has occurred. There are other examples of

this that occurred, the time available does not

allow them all to be explored.

The second special leave point arises in

regard to the issue of foreseeability. A major

thrust of the appeal in the court below was that
the trial master had misdirected himself on the
issue of foreseeability. In particular, it is said

that he misdirected himself as to the test to be

put in regard to foreseeability of risk in

Wyong Council v Shirt.

That matter was agitated in the notice of

appeal, in the written outline that the court had made available to it through the exhibit of the	affidavit and orally. It was a major point on the	appeal, that this trial had gone wrong because the
trial judge had misdirected myself on the basic
test as to foreseeability of risk. The Court will
not find any treatment of that argument, in that
submission, in the reasons for judgment.

GAUDRON J: But it does only arise, does it not, once you

establish causation, in a practical sense?

MR GRAY:  In a practical sense we say that it is a question

that must be addressed early on, because if there

was a foreseeable risk of injury then the employer

had to focus on what should be done to avoid it,

Goldsworthy 6 11/3/94

and there were simple steps they took after the

accident to avoid the problem.

GAUDRON J:  But your argument must depend on knowing why the

accident happened.

MR GRAY:	Yes, we agree with that, it is a question of
GAUDRON J:	And so before that argument arises it is

necessary for you to establish the instability of

the machine.

MR GRAY:  The instability of the machine, unmodified, was

established.

DAWSON J: But you also have to establish that the machine

caused him to fall, you see, and he could not

explain it. He said, "It must have been the

machine," but there is no evidence that it was.

MR GRAY:  If the Court pleases, the situation in regard to a

work injury can often be unexplained by the worker.

DAWSON J: That is right, but you say the inference should

be drawn that it was the machine, but the court

declined to draw that inference.

MR GRAY:  The court found the machine to be modified, but

the court did not address the matter on the basis

of an unmodified machine in any real way. And we

say on the question of causation that is a common sense test in all the circumstances. This worker could not say, and frankly said, "I cannot say why

I fell." But one does not fall for no reason.

Here there was a ready explanation; he was

manoeuvring a difficult, unwieldy machine.

Now the court below proceeded on the basis,

essentially, that the machine was modified and

hence the problem of balance was not there to be

called in aid by the plaintiff and as a result, we

say, there was an error.

The special leave point arises in this way

that, we say, a tenable argument was put. It could

not be said to be untenable. The appeal court

simply has not referred to that argument in its

reasons or addressed. This Court has dealt with

that situation in the case of Jones that we

identify in our outline of argument, and as said in

the criminal context the criminal appeal court must

deal with arguments that are not untenable.

We say that as a matter of principle that

should apply to a civil appeal court as well, and we say that this argument was not in the category of untenable, and it simply has not been addressed.

Goldsworthy 11/3/94

My learned friends in the outline of argument

identified some pages where they say the question
of foreseeability was addressed, if so it is by

inference. The Court will find nowhere in the reasons for judgment the court identifying its findings in regard to foreseeability of risk, or

addressing the argument that the trial miscarried

below because of the trial judge misdirecting

himself on that issue.

There was an abundance of evidence, if the

Court pleases, from witnesses called both by the plaintiff and the defendant that the unmodified

machines had difficult balance factors about them. The machine, in fact, pivots on one wheel, and one

of the modifications was to extend the handles to
allow a better method of control, but there was

ample evidence below, and it is set out in

exhibit CR4 to the affidavit that supports the

application. There is ample evidence from a number

of workers that the machines unmodified were

unstable and difficult to handle, to the point

where people refused to use them. That is, we
would say, the obvious explanation as a
contributing factor to the fall, and simply our

case was not heard on that issue by the Full Court.

The closest that the court comes to dealing

with the matter is a passage where Justice Bollen

simply says that, at page 59, line 14:

Many points which I regard as incidental were

debated before us. No fact or "law" emerges

from debate which could lead to a finding for

the plaintiff.

And, apart from that, there was an approval of what

the trial judge had done without any discussion at

all of the point that was agitated and, we say,

that represents a miscarriage of justice, but also
there is a point of law, does the Jones' test apply

in the civil arena?

So, in summary, if the Court pleases, our

first point is that there was a manifest injustice

in the case; forensic advantage was taken by

counsel of the defendant of Brown's position; and,

the court did not draw inferences -

DAWSON J:  I see that Justice Bollen said on page 59 that

there was a lot of debate:

about which lawn edging machine the plaintiff

was using at the time.	In the result I think
it matters not.	But I discuss the point.

MR GRAY:	Yes.
Goldsworthy	lL 3/94
DAWSON J:	They did not base their conclusion on that at

all.

MR GRAY:  When His Honour came to discuss the other aspect

of it, His Honour, we say, then did not deal with

the foreseeability argument. The other analysis -

His Honour simply talks about little or no risk,

but he never identified what test he is using, and

he does not discuss our complaint about what the

trial judge said. So, we say that that part of the
reasoning is flawed by a failure of the court to

simply consider the major thrust of our complaint

about the trial judge's decision.	May it please
the Court.

DEANE J:  Thank you, Mr Gray. The Court need not trouble

you, Mr Trim.

This is an application for special leave to

appeal from a unanimous decision of the Full Court

of the Supreme Court of South Australia dismissing

an appeal by an unsuccessful plaintiff in a

negligence action.

In the view of the Court, the case turns very

much on its own facts and an appeal would give rise

to no real question of general principle

appropriate to attract the grant of special leave.

Indeed, the central issue in an appeal would be whether this Court should interfere with concurrent

findings of fact by the courts below. Accordingly,
the application for special leave to appeal is

refused.

MR TRIM: If the Court pleases, I seek an order as to costs.

DEANE J:  The application is refused with costs.

AT 10.06 AM THE MATTER WAS ADJOURNED SINE DIE

Goldsworthy 9 11/3/94