Heaney Marketing Pty Ltd v Heaney

[1997] QCA 341

IN THE COURT OF APPEAL	[1997] QCA 341
SUPREME COURT OF QUEENSLAND
Brisbane	Appeal No.2206 of 1997
[Heaney Marketing P/L v. Heaney]
BETWEEN:

HEANEY MARKETING PTY LTD

ACN 010 838 089

(Defendant) Appellant

AND:

SCOTT MICHAEL JOHN HEANEY

(Plaintiff) Respondent

McPherson JA
Pincus JA

Shepherdson J

Judgment delivered 3 October 1997

Separate reasons for judgment for each member of the Court, each concurring as to orders made.

APPEAL DISMISSED WITH COSTS.

CATCHWORDS: NEGLIGENCE - apportionment of responsibility - acquiescing co-director.

Nicol v. Allyacht Spars Proprietary Limited (1987) 163 CLR 611
Bankstown Foundary Pty Ltd v. Braistina (1986) 160 CLR 301

Podrebersek v. Australian Iron & Steel Pty Ltd (1985) 59 ALJR

492

Counsel:	Mr J Griffin QC for the appellant Mr L Barnes for the respondent
Solicitors:	McInnes Wilson for the appellant Boyce Garrick Eastman for the respondent
Hearing date:	22 August 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 2206 of 1997

Brisbane

Before McPherson J.A.
Pincus J.A.
Shepherdson J.

[Heaney Marketing P/L v. Heaney]

BETWEEN:

HEANEY MARKETING PTY. LTD.
(ACN 010 838 089)

(Defendant) Appellant

AND:

SCOTT MICHAEL JOHN HEANEY

(Plaintiff) Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 3 October 1997

I have read and agree with the reasons of Shepherdson J. The appeal should be dismissed

with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 2206 of 1997.

Brisbane

Before McPherson J.A.

Pincus J.A.

Shepherdson J.

[Heaney Marketing P/L v. Heaney]

BETWEEN:

HEANEY MARKETING PTY LTD

ACN 010 838 089

(Defendant) Appellant

AND:

SCOTT MICHAEL JOHN HEANEY

(Plaintiff) Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 3 October 1997

I have read the reasons of Shepherdson J in which the circumstances of the case are explained;

I agree with his Honour that the appeal must be dismissed.

There was discussion before us as to whether the respondent plaintiff’s father simply asked the

respondent to remove the machine from the respondent’s vehicle or, in effect, gave what would have been

regarded as a direction. It appears to me that the view is open that the respondent took his father’s request

to be a direction and considered himself under a duty to carry it out, in the way his father had mentioned,

namely, by using the assistance of one Gordon McPherson. It was, as the judge has found, a breach of duty

on the part of the respondent’s father to request or direct the removal of the machine in the fashion he

mentioned; the judge also found that in complying with it, the respondent was himself guilty of negligence.

Neither of these conclusions is challenged, but it is said that the trial judge underestimated the

proportion of liability which the respondent should properly bear. The argument was that, considering the

whole of the circumstances, the primary judge’s apportionment cannot stand.

The matter is one of impression rather than calculation, but I see no reason to disagree with the

primary judge’s conclusion. To some extent the matter depended upon the nature of the working

relationship between the respondent and his father whose wishes the respondent would, according to the

ordinary operations of the relevant business, be expected to obey. It is true that the respondent was at fault

himself in doing what his father wished him to do without taking any additional precautions, such as getting

help from people in addition to Gordon McPherson, or obtaining the use of a trolley. But in my view the

conclusion that the appellant should properly bear a substantially greater proportion of the blame than the

respondent was well open to the primary judge.

I would dismiss the appeal with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	Appeal No.2206 of 1997
Before	McPherson JA Pincus JA Shepherdson J

[Heaney Marketing P/L v. Heaney]

BETWEEN:

HEANEY MARKETING PTY LTD

ACN 010 838 089

(Defendant) Appellant

AND:

SCOTT MICHAEL JOHN HEANEY

(Plaintiff) Respondent

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 3 October, 1997

This appeal is against a finding of a learned District Court judge in which she apportioned

responsibility for the respondent’s damage as to 75 per cent to the appellant defendant and as to 25 per cent

to the respondent plaintiff.

On 13 May 1994 the respondent injured his lower back when, in the course of his employment by

the appellant, he and another employee named Gordon McPherson, manually lifted a microfiche machine

from the back of the respondent’s Land Cruiser motor vehicle then at Mountain Creek to another site

namely a table in the kitchen in the appellant’s nearby Mountain Creek office. The machine weighed 110

kilograms and was 900 millimetres tall and 600 to 700 millimetres wide and deep.

At the time of the above injury the respondent was 34 years old and a director but not a shareholder

of the appellant.

At the same time the respondent’s parents John Heaney and Maureen Heaney were directors and

shareholders of the appellant and the learned trial judge found that the respondent saw his father as in charge

of work direction.

The circumstances leading to the manual lift and the respondent’s injury as found by the learned trial

judge were:-

“In late April 1994 the plaintiff’s father agreed to buy a microfiche machine from another real estate agent. [that other agent was Barbara Banks] The plaintiff and his father drove in the plaintiff’s car to collect it. The plaintiff and at least two others carried it into the back of the plaintiff’s Land Cruiser without injury. It remained in the car until black Friday 13 May 1994 when the plaintiff’s father requested the plaintiff and another employee to move the machine into the office saying something like “Will you get that machine out of the back of your car before you rattle it to pieces”.”

It was in carrying out these directions that the respondent injured his back.

John Heaney had died not long before the trial and Her Honour had before her a statement by John

Heaney dated 27 June 1994 as well as the appellant’s answer to an interrogatory which had been sworn

by John Heaney. The learned trial judge concluded that the father, John Heaney, recognised the machine

as being very big and heavy, that it had taken the respondent and two of Barbara Banks’ employees to get

it out of her office and into the back of the respondent’s 4WD, that Gordon McPherson described by John

Heaney as “a strong young fellow”, who was one of the appellant’s salesmen was in the appellant’s

Mountain Creek office and this prompted John Heaney to instruct the respondent to ask Gordon to help

him get the machine out of the car.

The learned trial judge further found:-

(a)       that the respondent was assisted in carrying the machine by a fit strong sales person in his thirties;

(b)       that the respondent knew the machine was heavy but thought it would be safe to lift despite his earlier

back problems and a laminectomy in 1991;

(c)       that in the course of turning to lift the machine onto the kitchen table the respondent injured his back.

As will be noted from the above findings the respondent had indeed suffered back problems earlier

in his life and in 1991 had undergone a laminectomy. The learned trial judge further found that the

respondent was a competent, intelligent, married man with children, who had a varied and impressive work

history, and who had a history of back problems and a significant back injury in 1991 necessitating a

laminectomy although he felt fit and symptom free at the time.

Before this Court, the appellant, by its counsel Mr Griffin QC, has contended that on one

interpretation of the judgment, namely the respondent’s awareness that his back was not strong and prone

to injury, the learned trial judge apportioned 25 per cent responsibility against the respondent. Mr Griffin

has further submitted that the evidence disclosed an even more substantial basis upon which the respondent

necessarily should be held contributorily negligent, namely that it was essentially his own negligence which

rendered the appellant liable. He expanded upon this submission by arguing that because the respondent

was a director of the appellant he was charged with or acquiesced in managerial responsibility in the

appellant. He submitted that because the respondent happened to be a director carrying out his father’s

instructions, a greater percentage of liability - 40% - should be imposed on him because he was a director.

He has relied on the decision of the High Court of Australia in Nicol v. Allyacht Spars Proprietary Limited

(1987) 163 CLR 611 to support this proposition. In the circumstances of that case the High Court found

Nicol 40 per cent to blame for his own injuries.

Nicol, a director of Allyacht Spars Proprietary Limited was injured while he and another employee

named Berg (also a fellow director) were attempting to remove and replace a banner on a flag pole, the

banner being some 27 feet above the ground. Replacement of the banner required unscrewing a section at the end of the horizontal arm on the flagpole. The problem in performing this task was “to provide means

by which someone could do the work at the necessary height above ground” (see 163 CLR 614).

The facts as described in the joint judgment of Mason CJ, Toohey and Gaudron JJ (at p.614) were:-

“The ground around the flag-pole was sloping. A decision had earlier been made to fix the extension ladder to a trestle, thus providing access to the banner and support for the ladder. However the trestle which it was hoped to use was unavailable and a trestle which was about 2 ft. shorter was used. The result was that the extension ladder fixed to the trestle would not provide sufficient height in the sense that the person changing the banner would have something to lean against. It had earlier been decided to place the trestle on the tray of the utility, thereby obtaining additional elevation together with a footing to be provided by the utility itself. This the appellant and Mr. Berg did. The appellant then climbed the ladder and, at a convenient height, lent forward to begin work at the end of the horizontal arm. As he did so the trestle and ladder moved away from the arm, dislodging the appellant who fell to the ground suffering severe injuries. Mr. Berg described what happened in these terms: “That foot of the trestle furthest from me closed and then the one closest to me skidded out along - across the aluminium.” The “aluminium” referred to was the tray of the utility.

The system employed to replace the banner was clearly unsafe.”

The above three judges in the High Court said (at p.616):-

“Before the appellant and Mr. Berg left the respondent’s premises on Friday afternoon, the system by which the banner would be rehung or replaced had been worked out. There was no clear evidence that Mr. Gray [a third director] played any part in the working-out. It is apparent that Mr. Berg played a significant part and it is probable that he initiated a discussion with employees of the respondent as to the system that might be used. The appellant joined in that discussion but the totality of the evidence suggests that, at least in broad terms, the use of a ladder and trestle had already been canvassed before he did so. Mr Berg agreed that the suggestion to use a trestle may have been his. In cross-examination he said: “ . . . I am fairly sure that I suggested the idea.” He also agreed that it was his idea to mount the trestle in the back of the vehicle.”

At pp.616-7 their Honours said:-

“That the respondent was under a duty to provide a safe system of work for its employees is not in doubt. The fact that the appellant was, at the time of his accident, a director of the respondent did not affect his status as an employee: Lee v. Lee’s Air Farming Ltd (1961) AC 12. Nor did it alter the duty of care owed by the respondent to him along with its other employees . . . In the present case there was a failure to provide proper and adequate means of carrying out the work of replacing the banner. There is a finding of the trial judge, with which there can be no quarrel, that in the actual erection of the ladder and trestle the appellant’s role was no less than that of Mr Berg. But that is no answer to the appellant’s claim, though it may go to the issue of contributory negligence . . . .”

At p.618 their Honours said:-

The cause of the appellant’s injuries was the provision of a means of access to the banner which was simply unsafe. That was not solely the fault of the appellant. It was in part his fault in acquiescing in the use of the system and helping to put it into operation. But it was also very much the fault of those who devised the system. The respondent must be held vicariously responsible for the appellant’s injuries.”

Mason CJ, Toohey and Gaudron JJ. when considering apportionment of responsibility and the

criterion prescribed by s.10 of the Law Reform (Tortfeasors Contribution, Contributory Negligence

and Division of Chattels) Act 1952 said (at p.618):-

“The question here is one of the degree to which the appellant departed from the standard of conduct expected of someone in his position. He was certainly careless of his own safety but what he did posed no risk to the respondent or to anyone else ... “

Their Honours then quoted from the judgment of Kelly SPJ the dissenting judge in the Full Court noting that

Kelly J. had said of Nicol’s own negligence:-

“Whilst it would not appear that the appellant was experienced in the climbing of ladders to the height which was required in this case, nevertheless it must be assumed that he possessed ordinary common sense and it should have been apparent to him that it was dangerous to do what he did since, as the learned judge found, the collapse of the trestle/ladder combination was likely once his weight was positioned at a certain height.”

The three judges then went on:-

Kelly SPJ. considered that a proper apportionment would be to attribute 40 per cent of the responsibility to the appellant and 60 per cent to the respondent. This is an apportionment we would adopt, reflecting as it does the failure of the appellant to take reasonable care for his own safety in a situation which cried out for care, while recognizing that the appellant’s own negligence was not a source of danger to the respondent.”

Thus, in the final analysis the finding by the High Court of contributory negligence against Nicol, was

that he had failed to take reasonable care for his own safety “in a situation which cried out for care” while

recognising that his own negligence was not a source of danger to his employer.

This approach by the High Court accords with its earlier decisions; see for example Bankstown

Foundary Pty Ltd v. Braistina (1986) 160 CLR 301 at p.310 where Mason J. (as he then was) Wilson and

Dawson JJ. in their joint judgment said:-

“A worker will be guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury. But his conduct must be judged in the context of a finding that the employer had failed to use reasonable care to provide a safe system of work, thereby exposing him to unnecessary risks. The question will be whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment or to negligence rendering him responsible in part for the damage.”

Their Honours then referred to the following statement by the High Court in Podrebersek v.

Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at pp.493-494; 59 ALR 529 at p.532:-

“The making of an apportionment as between the plaintiff and the defendant of their respective
shares in the responsibility for the damage involves a comparison both of culpability, i.e. of
the degree of departure from the standard of care of the reasonable man (Pennington v.
Norris (1956) 96 CLR 10 at p.16) and of the relative importance of the acts of the parties
in causing the damage: ... It is the whole conduct of each negligent party in relation to the

circumstances of the accident which must be subjected to comparative examination.”

Returning then to the instant case, the reasons given by the learned trial judge disclose that she said:-

“The defence contends that as the plaintiff was a director of the defendant he was responsible for the manner of moving the machine. This in itself is no answer to the plaintiff’s claim but may be relevant to contributory negligence.”

After considering Nicol v. Allyacht Spars Pty Ltd (supra) at pp.616-7 Her Honour referred to the

respondent’s age, his varied and impressive work history, and his prior back history. She went on:-

“He did acquiesce in his father’s direction to move the machine and failed to consider safer
and wiser options which were open to him, such as getting more men from the defendant’s
other offices to assist. The direction came from his 65 year old father who was clearly the
boss.
I am satisfied in all the circumstances that the plaintiff should bear some responsibility for his
acquiescence by way of an apportionment of responsibility, but on the facts of this case the
greater responsibility must lie with the defendant.”
(There was evidence that the appellant had other offices.)
In my view, the learned trial judge correctly applied the appropriate test finding that the respondent

had failed to take reasonable care for his own safety in that he simply acquiesced in the directions of his

father, who as she found was the boss, and who was also a director. She pointed also to his failure to

consider wiser and safer options open to him.

I respectfully agree with the comment which Her Honour made namely that “No real assistance as

to the correct apportionment can be gained from cases such as Nicol v. Allyacht Spars Pty Ltd ....”

Finally, I would add that in Podrebersek (supra) 59 ALJR at pp.493-4 the High Court of Australia

said:-

“A finding on a question of apportionment is a finding upon a “question, not of principle or of
positive findings of fact or law, but of proportion, of balance and relative emphasis, and of
weighing different considerations. It involves an individual choice or discretion, as to which
there may well be differences of opinion by different minds” - British Fame (Owners) v.
Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly

reviewed.”

In my view, it was not unreasonable for the learned judge to make the apportionment which she did.

She obviously based her finding on her view of the proportion of responsibility each of the parties should

bear. The respondent had urged her to apply Nicol’s case. If Nicol’s conduct was dangerous and he was

working in a situation which “cried out for care” then in my view in the present case the conduct of the

respondent, albeit an acquiescing co-director, required an apportionment less than that made against Nicol.

Also, in my view, in making her finding of liability in the respondent when she referred to “all the

circumstances” the learned trial judge must be taken to have included the circumstance that the respondent

was a director of the appellant. This is apparent from Her Honour’s use of the word “acquiescence” in the

above quoted extract from her judgment - a word which I think was almost certainly taken from the

judgment in Nicol’s case at p. 618 when the judges referred to Nicol’s “acquiescing in the use of the

system.” Her Honour’s judgment was given on the same day as and after addresses in which the applicant’s trial counsel had read that very passage from Nicol. I do not see it as the duty of the trial judge to spell out

every one of the circumstances which she took into account.

The appeal must be dismissed with costs.