Holroyd Municipal Council v Marshall

[1997] HCATrans 221

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S210 of 1996

B e t w e e n -

HOLROYD MUNICIPAL COUNCIL

Applicant

and

ROBERT STANLEY MARSHALL

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY,15 AUGUST 1997, AT 10.26 AM

Copyright in the High Court of Australia

MR J.E. MACONACHIE, QC:   May it please the Court, I appear with my learned friend, MR J.R.J. LOCKHART, for the applicant.  (instructed by Hunt & Hunt)

MR B.M.J. TOOMEY, QC:   May it please your Honours, I appear with my learned friend, MR J.W. FERNAN, for the respondent.  (instructed by Cawoods)

GAUDRON J:   Thank you.

MR MACONACHIE:   Your Honours, there is an elegantly simple point.

McHUGH J:   I notice you have got Miletic on your list of authorities, Mr Maconachie.  That does not seem to have much to do with this case, does it?

MR MACONACHIE:   It does, your Honour, only in this sense:  this is a case which involves the interests of the administration of justice in the particular case but also, we would submit, a question of law of general public importance and that is the obligation of an intermediate appellate court to carefully express its reasoning process, especially when an appeal is to be allowed.

GAUDRON J:   But that seems to overlook, if I may say so, the nature of the duty of care involved in negligence cases.  I mean, what you do essentially is you assign a duty of care which would have avoided the injury involved.  Now, once you have a duty of care that would do that, there really is no need to go around spelling out issues of causation.  In fact I think there was a decision to that effect of the Court of Appeal in England and your problem here, is it not, is that the duty of care which was assigned which Mr Justice Handley will accept was a narrower duty than that which the others subscribe to.

MR MACONACHIE:   The duty of care that was assigned by their Honours in the majority was that a proper system ought to have been instituted and they did not explain what, in the circumstances, would have been proper.  The trial judge was of the view that there was no breach.  One member of the Court of Appeal was of the view that the breach - and we would submit it is the only breach that could have been that which the majority had in mind, that is, two men and a rope - Mr Justice Handley found that to be the appropriate duty but recognised ‑ ‑ ‑

GAUDRON J:   Is that right?  Did he not think it was just sufficient that he had been warned not to attempt to stand while holding the grate except with the assistance of another person?

MR MACONACHIE:   We would submit not.  We would submit that what Mr Justice Handley found was a need to instruct to use two men and a rope.

GAUDRON J:   Yes, but he said that would not have assisted in this matter.  The problem was in lifting, unaided, and that is where the causation comes in, and on that he says the only duty was to tell him not to do it as occurred.

MR MACONACHIE:   Yes, and the majority, we would submit, said the same thing in less precise terms, that is, if one looks at what Mr Justice Powell had to say, and it is to be found at page 40 of the application book, he says about line 32 - perhaps if I go back a step.  Firstly they find at line 15, or he finds and Mr Justice Sheller agrees with him:

the Respondent ought not be regarded as having discharged its duty to the Appellant.

Then he goes on to explain what that duty was in his view but does not do so with any precision or clarity, we respectfully submit.  He says:

It is clear, and was well recognised, that, if one man were to attempt to lift a grate from a gully pit, he was likely to suffer a back injury.

GAUDRON J:   He is obviously talking in terms of a complete lift, whereas Mr Justice Handley dissected it into two motions.

MR MACONACHIE:   Yes, but it seems equally clear, if I may go on, your Honour, I think it becomes plain given that there was a finding of fact by the trial judge that there was an instruction to use two men and all three members recognised that that was unreviewable and it is in the context of that unreviewable finding that these comments about breach are made:

It seems equally clear that those, such as the Appellant, who were likely to be called upon to undertake such an operation were likely to be, as was the Appellant, ill‑educated and unskilled or but semi‑skilled labourers.

The McLean v Tedman consideration.  He says:

In these circumstances, so it seems to me, a reasonable employer should have foreseen that a workman in the position of the Appellant might impulsively, or thoughtlessly -

that is the McLean v Tedman point -

attempt to lift the grate on his own notwithstanding the instruction that had been given to him some hours before.  Despite this, it is clear that there was no standing instruction, either, that such a lift should not be undertaken by one man, or, that, if such a lift were to be undertaken, it was to be undertaken by two men and using the method which Mr Dennis described in his witness statement.

That is, a rope.  So that they were saying the same thing as Mr Justice Handley had said.

GAUDRON J:   Yes, but it is talking about the completed act of lifting the lid up and then becoming upright, whereas Mr Justice Handley said it did not matter whether he lifted it to a little bit, although it does seem hard to imagine that you would lift and presumably hold it there squatting until somebody else came and helped you to stand up.

MR MACONACHIE:   Not at all.

GAUDRON J:   But that is essentially what he said, is it not?

MR MACONACHIE:   That is what he says and it is essentially what the trial judge found.

GAUDRON J:   Once you accept it like that, that, what, you can stand there waiting for a man to come and help you - - -?

MR MACONACHIE:   Not at all.  The point is that there had to be some causal connection between whatever it was that was found by the majority to be the breach and the damage that was suffered and it was not adequately explained.  What your Honour is putting to me, in a sense, exemplifies the need for there to be a clear and precise explanation of the reasons why a solemnly considered judgment in favour of one party should be overturned and replaced with a judgment in favour of the other party.

GAUDRON J:   Because there was bound to be a different duty of care.  In Justice Sheller’s case, the duty - and this is page 18 - was to:

establish a method for performing this task with safety and to take such steps as were reasonable to ensure that that method was used.

MR MACONACHIE:   Indeed.  That is, two men, one rope.

GAUDRON J:   I do not read it in that way at all.  I read it as regular reinforcement of the message.

MR MACONACHIE:   Indeed.

GAUDRON J:   That, too, seems to be what is involved in Mr Justice Powell’s analysis of the matter, that there had to be a standing order or a standing instruction.

MR MACONACHIE:   If there were a standing order, it is not self‑evident that the standing order would have had any impact upon Mr Marshall any more than would have had the precise direction given in the morning, “Use two men.”  He did not obey the precise and direct order, “Use two men” that was given to him orally and expressly on the morning of the incident.  How could one infer, without a careful explanation, that a standing order would have had any causative impact upon Mr Marshall?  That is the very point that we seek to agitate, that if you are going to infer some causative ‑ ‑ ‑

GAUDRON J:   That, if I may say so, raises no special issue, does it?

MR MACONACHIE:   We say it does, given that this Court has said in Nguyen’s Case, that with special leave as the vehicle or the gateway to review of an intermediate appellate court, intermediate appellate courts are, in effect, final courts of appeal.  The corollary of that, we say, is that if a reasoned judgment of a judge at first instance is to be overturned and a judgment for the other party put in its place, the judicial process is diminished unless the reasoning process which leads to that dramatic turnaround is properly and adequately explained. 

Your Honour Justice McHugh had something to say about it in Soulemezis as did Justice Kirby.  It is, as your Honour said in Soulemezis, important that justice not only be done but be seen to be done.  That is one of the essential reasons for the giving of reasons by judicial officers.  We submit that this is an appropriate case for this Court, which has not really looked very carefully at this question at all - it has been developed in, particularly, the Court of Appeal in New South Wales and in one or two of the other States and in the Federal Court to a limited extent.  This is an appropriate vehicle for this Court to look at the circumstances in which and the extent to which there is a legal obligation to give clear and careful and

precise reasons when it is, effectively, the end of the line in most cases, particularly so, we say, where there is a case where a judgment for, in this case, the defendant at first instance is to be set aside and judgment for the opposite party is to be put in its place. 

There needs to be, we would submit, clear and careful reasons and there is a legal obligation to so do.  It was not observed in this case and it is a proper and appropriate vehicle for this Court to examine and explain the nature and extent of that duty.  That is the point and they are our submissions.

GAUDRON J:   Did you need time for this application?

MR MACONACHIE:   Yes, we did, I regret to say.  I noticed that in Court this morning, your Honour.

GAUDRON J:   It was only a day or so.

MR MACONACHIE:   It was three or four days, I think.  No point was taken by my learned friend, it is de minimis, and we would submit that time should be extended.

GAUDRON J:   You do not oppose that, Mr Toomey?

MR TOOMEY:   I would like to know what your Honours were going to do first.  No.

GAUDRON J:   You do not oppose that?

MR TOOMEY:   No, your Honour.

GAUDRON J:   Thank you, Mr Toomey, we do not otherwise need to call on you.

Given the duty of care as formulated by the majority in the Court of Appeal the proposed appeal, confined as it is to the issue of causation, is bound to fail.  There is thus no occasion to grant special leave in the interests of the administration of justice.  There will be an extension of time but the application is refused.

MR TOOMEY:   I ask for costs, your Honour.

GAUDRON J:   With costs.

AT 10.40 AM THE MATTER WAS CONCLUDED