Kramer v SMK Pty Ltd

[1995] HCATrans 55

IN THE HIGH COURT OF AUSTRALIA

Registry  No C21 of 1994

B e t w e e n -

MILAN KRAMER

Applicant

and

SMK PTY LIMITED

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 16 MARCH 1995, AT 11.49 AM

Copyright in the High Court of Australia

MR G.J.D. RICHARDSON, SC:   May it please the Court, I appear with my learned friend, MR G.J. LUNNEY, for the applicant in this matter.  (instructed by Legal Aid Office (ACT))

MR P.J. DEAKIN, QC:   If the Court pleases, I appear in that matter with my learned junior, MR M.K. MINEHAN, for the respondent.  (instructed by Neville and Edwards)

DAWSON J:   Yes, Mr Richardson.

MR RICHARDSON:   Your Honours, in Brisbane in June 1987 before the same Full Court of this Court consisting of five Judges, two cases were argued on consecutive days with coincidentally similar names.  The first to be argued was McLean v Tedman, which has become a leading authority in the area of responsibility of an employer in relation to system of work cases.  The other case, the second case to be argued, was McLean’s Roylen Cruises Pty Ltd v McEwan.  McLean v Tedman had judgment given on 16 October of the same year and expressed the statement that is now regarded as the leading statement in the area of law at page 313 that:

The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system.....And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.

McHUGH J:   This is not really a system of work case at all, is it?  It is really an unsafe premises case.

MR RICHARDSON:   Well, it can be seen that way, your Honour, but it is not a case, in our submission, as treated by the Full Court of a lack of need to warn a skilled employee in the manner of performing his work which may occur in a one-off situation.  It is a case that is, as your Honour says, an unsafe place of work or an unsafe system of work.  But, it is really, in our submission, more an unsafe system of work because the place of work only becomes unsafe on the occasions when the worker has to go the 20 or 30 metres to collect these large pieces of timber and bring them back.

McHUGH J:   But the premises are unsafe while there is a risk of injury that people may fall over these off-cuts.  It seems to me that the fact that he is a skilled workman has nothing whatever to do with it.  But, that being said, what is special about this particular case?  It is just a question of fact, is it not?

MR RICHARDSON:   Well, no, your Honour and that is why I referred to the two cases that were argued in the same ‑ there are two areas, and I will develop them both, if I may, in which it is special, or, two areas where this Court has the opportunity to clarify the law.  One is whether the lack of need to warn a skilled worker principles applies to a system of work case or an unsafe place of work case and the second is, where the onus of proof lies in establishing whether a warning or instruction ‑ and my submission is they are different ‑ would have obviated the accident and, therefore, the lack of it is causally connected.  They are the two issues.

McHUGH J:   Yes, but it does not seem to have much to do with skill or with a particular workman.  For example, if you had sued, if you had walked in and injured yourself on those premises, you would have sued.  You would have said that there was a foreseeable risk of injury and that the employer or occupier had failed to obviate it, either by having a cleaner there regularly or having notices insisting that the workmen do their job properly.

MR RICHARDSON:   Coupled with an initial instruction to do so, yes.

McHUGH J:   But, that being said, it is just a question of fact, is it not?

MR RICHARDSON:   Well, your Honour, the Full Court have referred to and relied upon the case of Raimondo v South Australia.  Our submission is that Raimondo ‑ and I appreciate, of course, that cases in law create precedents only for the discussion of principle and not for the application of particular facts ‑ but nevertheless, Raimondo’s Case has come to be relied upon as a case which supports the proposition that, even in a system of work situation, it is unnecessary to give instruction or direction to a skilled worker.  And that is the case that this Full Court have relied on.  You see, the primary judge, the trial judge, found for the plaintiff for a substantial judgment ‑ although there has to be a retrial on the issue of damages ‑ but a very substantial judgment and the Full Court have upheld the appeal and quashed that judgment on the basis of the lack of need to warn a skilled worker principle.

They have relied upon Raimondo and the leading judgment of Mr Justice Mason, as he then was, with whom the rest of the Court agreed, is referred to without quoting it, but referred to with approval in McLean’s Roylen Cruises Case, the other case that was argued and in which judgment was given slightly ahead of McLean v Tedman on 28 June.

That was a case which dealt with a deckhand on a barge whose arm was crushed when he reached down between the barge and jetty.  Now that is a case that we would not suggest is wrong in any way.  That was a case of a skilled worker who needed, so the judgment decides, no warning about an obvious risk in a one-off situation.  But they refer, as I say, or the leading judgment refers, with approval to Raimondo, and Raimondo was a case which, in our submission, was a system of work case; it was a case where an employed painter was injured when he followed an unsafe practice of standing under a plank which was resting on trestles while he wanted to move the trestles along or move the platform along, and it was held in those circumstances he was not liable.

TOOHEY J:   Where do you say the unsafe system of work lay here?

MR RICHARDSON:   The unsafe system of work here, your Honour, was in not “instituting and enforcing”, to use the McLean v Tedman words, a system of ensuring that the floor was cleared prior to the regular fetching of these heavy planks.

McHUGH J:   I am not sure what that means.  If you are working with timber, you are going to end up with off-cuts on the floor.

MR RICHARDSON:   Indeed.

McHUGH J:   Either the people working with the timber remove the off-cuts, put them into a bin, or somebody comes round and sweeps the floor and clears it.

MR RICHARDSON:   Yes, well one of those would have been appropriate and an instruction ‑ ‑ ‑

McHUGH J:   Except the first, I suppose, might raise a question of contributory negligence on the part of the plaintiff.

MR RICHARDSON:   It might, your Honour.  There is a contributory negligence question in this matter.

McHUGH J:   But putting that to one side, it is the negligence of the employer that we are concerned with, and where do you say that that lay?

MR RICHARDSON:   The negligence of the employer lies in not instituting a system of work to ensure that the floor was clean.  Such a system may have been one of the things that your Honour has just said.  It may have been an instruction enforced to the worker, the carpenter, to clear the floor as he ceases cutting, once he has ceased cutting and is about to go and fetch another piece of timber.  It may be that a third person, like a cleaner, is employed to clean the floor in those circumstances.  But in this case it is acknowledged by the employer, who was called, or at least the director/ principal, the director of the employer was called and he acknowledged that there was no such instruction given at all; it was simply left to the discretion of the employee.

McHUGH J:   There was also no warning; no warning notices that failure ‑ ‑ ‑

MR RICHARDSON:   That is right, your Honour.  There was simply nothing done at all.  It was acknowledged, as the Full Court acknowledged it was acknowledged, that there was nothing done in this topic at all, save for the provision of a bin to put the off-cuts in, but the uncontroverted evidence was - and indeed the evidence accepted by the defendant’s director - was that not all pieces would go in.  Some would miss, some would not be easily seen when they did fall on the floor, and the worker himself gave evidence that he was too busy to pick up all the pieces as he worked and that was not tested in cross-examination.

Now, the Raimondo Case, your Honours, was on appeal from the Full Court of South Australia and it has been referred to on a number of occasions in South Australian cases.  Indeed, in 1981 in a case which is not on my list, I regret, of Vrahimis v Opat, (1981) 27 SASR 54, at page 56 Mr Justice Cox refers to the decision as “one which looks like becoming the favourite authority in a defendant’s industrial negligence armoury”. It has been applied by the Full Court in South Australia in a couple of cases, one dealing with a one-off situation of a physiotherapist’s aide moving a heavy traction table and we would not complain about the application of the principles in that case.

In another, in a 2:1 decision of the Full Court, relating to a fall from a movable platform which did not have guard rails.  In the case of Watson v Telecom it was applied by the trial judge and also by the dissenting judge in the Full Court in a situation where an experienced painter fell from two trestles - sorry that is the wrong case.

It was a case where an experienced telephone linesman was working up high, he had a tether securing him to the building, but he wanted to receive a fitting from another workmate and called out to the workmate to do so.  Normally, the findings of fact were, in addition to the tether there was also a body line supplied.  In this case too, he detached the tether, the body line was not in use, he moved to get the other article and he fell.  Now, the trial judge found for the defendant, also referring to and applying Raimondo’s Case, as did the dissenting judge.  The point I am making, your Honours ‑ the special leave point that I say that applies is this, that Raimondo’s Case is being and has been applied by Full Courts as authority for, in our submission, an incorrect proposition.

McHUGH J:Well, that just means they are wrong on the facts.  I mean, the general proposition in Raimondo is unchallengeable, is it not?  It is a question of its application and having regard to the particular facts.

MR RICHARDSON:   Well, our submission would be, your Honour, that the Court would now say that the law has progressed since Raimondo’s Case ‑ ‑ ‑

McHUGH J:It is not the law; it is just the facts.

MR RICHARDSON:    ‑ ‑ ‑ and that referring with approval to Raimondo’s Case in a judgment which was argued and given at must the same time as McLean v Tedman appears to be giving force to a set of principles which this Court, we say, would not apply.

McHUGH J:Can I just ask you something about the facts of this case?  How many people worked in this particular ‑ ‑ ‑

MR RICHARDSON:   The evidence was that there was one hundred people who worked in the factory, but there is no evidence as to how many of those were carpenters.

McHUGH J:What was the evidence about offcuts being on the floor?  Were there dozens of them, scores of them; had there been any previous accidents?

MR RICHARDSON:   There was no evidence of previous accidents, but I would submit that the trial judge was correct in saying that it was clear that if an offcut fell to the floor there was a risk when one was going ‑ ‑ ‑

McHUGH J:But was there evidence as to how many offcuts would be lying around the floor during the course ‑ ‑ ‑

MR RICHARDSON:   Not as a number, your Honour, although the evidence suggested that each day there would be offcuts lying on the floor; it was not an unusual occurrence.

TOOHEY J:   It was a matter of practicality.  It could have hardly been negligence for an employer simply to allow one offcut, to take an extreme case, to be on the floor, immediately after the timber has been cut.  There obviously has to be some lapse of time, unless there is a system which would ensure that the offcuts did not find their way to the floor; that they went in some other direction.  But that is not suggested.

MR RICHARDSON:   But the evidence here is sufficient, in my submission, to suggest that the system of work was such that it allowed for offcuts to fall and remain on the floor on a regular basis.

TOOHEY J:   But it was not the case, as I understand it, that there could have been a system of work so that the offcuts were trapped, for instance, by something under the bench where the operators were working, so they did not get to the floor at all.

MR RICHARDSON:   That is not discussed in the trial at all.

TOOHEY J:   No.  My point is, that was not the case, was it?  There was no argument of an unsafe system of work because a system could have ensured that there was not debris lying around the floor.

MR RICHARDSON:   The only argument for a safe system, your Honour, was to clear the offcuts prior to the fetching of the large planks.

The Full Court in this case did not refer to McLean v Tedman at all, or the principles in that; they relied only on, and referred to, Raimondo and McLean’s Roylen Cruises, which in turn refers back to Raimondo.  Bus v Sydney County Council, your Honours will recall, speaks of the development of the law in this area since the decision in Dell’Oro, which is not a decision directly relevant here, but Bus is authority for the proposition.  It specifically says that the law has progressed by placing an increasing emphasis upon the relevance of the possibility of negligence or inadvertence on the part of the person to whom a duty of care is owed, and  our submission is that Raimondo should properly be reviewed by this Court in its application to these types of cases.

Raimondo was really, our submission would be, a case where it was spoken of as a slight risk; there was a slight risk of injury, but that was, of course, before Shirt v Wyong Shire Council which used the phrase “far‑fetched and fanciful”.

TOOHEY J:   But what I am not clear about, Mr Richardson, are you saying that in Raimondo the statement of principle is wrong or that courts are not applying it properly or are you saying something else?

MR RICHARDSON:   I think I am saying this, your Honour, that it is not really clear from Raimondo what the ratio is.  There are statements of principle which one could not criticise early in the judgment but the ratio is not entirely clear, having regard to the statements of principle that already apply, and my submission is that courts are applying Raimondo in situations which subsequent law indicates they simply should not be doing so.  Whether they are correctly applying Raimondo or not is a matter for debate.

The other area, your Honours, is that of causation.  The Full Court found, as a reason for reversing the trial judge’s decision, at page 35, line 8:

there was no probability on the evidence that the worker would have taken any greater care for his safety had he been given an instruction or warning of the kind suggested:

They refer to no evidence.  In the previous paragraph they do refer to the possibility of injury being as apparent to the plaintiff as it was to the employer but no evidence or cross-examination on that point was led.  The cases which were referred to by the Full Court are Perkovic and Duyvelshaff.  Duyvelshaff is not an instructional warning case.  Perkovic does refer to Turner v State of South Australia in the 1982 decision of this Court which, of course, precedes McLean v Tedman which has a specific passage which deals with onus of proof.

I will not take your Honours to it because of the shortness of time but McLean v Tedman says at page 314 that the onus is on a defendant to show that an instruction or warning would have made no difference.  That was a case where, your Honours will recall, the garbage men were running across the road rather than driving the truck down both sides so that they could finish quickly so that they could go to another job.  It was held that that was not established in that case.  In Kingshott v Goodyear Tyre & Rubber Co Aust Ltd, a decision of the Court of Appeal in New South Wales in 1987, that passage is referred to as the heresy of the shifting onus and is spoken of as a pragmatic way of solving the problem.

That is an area, in our submission, which this case would give rise to a proper discussion of the law in establishing what is meant by the shifting onus there, whether it is an evidentiary onus or an onus of proof.  In our submission, in this case the evidence was lacking and therefore the defendant fails on that point because he has failed to satisfy the onus.

And finally, your Honour, I do also rely upon section 35A(b) of the Judiciary Act and submit that the administration of justice in this particular case requires consideration by this Court of the judgment of the Federal Court in all the circumstances.

DAWSON J:   Thank you, Mr Richardson.  Yes, Mr Deakin?

MR DEAKIN:   Your Honours, could we deal with the first matter that my learned friend seemed to be relying upon, namely the application of the principles in Raimondo.  We would respectfully adopt what Justice McHugh has said, that the principles which Raimondo stands for are clear and uncontestable and what is involved in this case is whether or not those principles are applicable on the facts of this case.  That is a clear question of fact which could not warrant the grant of any special leave.  Those principles can be summarised in these words, that in the case where the plaintiff’s case is based upon a failure to warn or instruct an employee, where you have experienced employees exposed to obvious risks of injuries of which the worker is fully aware, then it is not open to a plaintiff to say, in those circumstances, that an employer breaches the duty of care which he undoubtedly owes.

MR TOOHEY:   Is that right?  I mean, is not an employee entitled to say, “I should be protected against my own lack of attention in carrying out a job”?

MR DEAKIN:   Within the duty of care, your Honours, there is no dispute that an employer is required to take into account the possibilities of inadvertence.  The employer did so in this case and conceded that there was the possibility of off-cuts remaining on the floor and there is no dispute about that.  But the trial judge in this case, your Honours, limited his findings of negligence to a failure to instruct or warn.  It was not, with the greatest respect to what your Honour Mr Justice McHugh said, an unsafe premises case ‑ ‑ ‑

McHUGH J:   It should have been.

MR DEAKIN   s certainly not what my learned friend said, namely an unsafe system of work case.  The trial judge dealt with the case that was sought to be raised as an unsafe system of work involving a requirement for cleaners to come and remove these off-cuts, in his judgment.  Could I just remind your Honours what the trial judge said about that case, at page 3 of the appeal book where, at line 12 the trial judge said:

Given the number of work benches involved in cutting timbers, it would have been impracticable for the cleaner to have kept the floor around the saws and associated work benches free from off-cuts at all times.

McHUGH J:   It is the words “at all times” that causes the problem.  That is not the test.  An employer only has to take reasonable care.  But, here you have a workman being sent 30 or 40 metres;  he has to pick up a piece of timber 7 or 8 metres in length, weighing 40 to 60 kilograms and you have off-cuts lying around the floor.  Sooner or later a workman is going to put his foot on one and is going to become injured and the question is what steps can be taken that would obviate it.  One would have thought that you would either have a cleaner or you would have a system of warnings, driving home the message.

MR DEAKIN:   Your Honours, they are matters which are questions of fact, with respect, and uniquely questions of fact.  The matter was determined by the Full Court on the basis that - applying the principles in Raimondo.  What your Honour has put to us, with respect, does not emerge from the judgment at first instance in respect of the system of work, and it was specifically rejected by the trial judge.  Those matters were raised by the plaintiff, with respect to your Honour, and were not accepted by the trial judge.  His findings were limited to a failure to provide proper instructions, reinforced from time to time by appropriate notices.  It is therefore properly categorised as a warning case, and not a system of work case.

McHUGH J:   This case has got nothing to do with skill, has it?  Skilled or unskilled, there is always the question of inadvertence, that you are going to not see what is there.

MR DEAKIN:   Your Honour, I think Justice Toohey may have mentioned it - everybody would know, particularly an experienced carpenter, that if you are engaged in cutting off pieces of timber and you do not follow the system, which was to put the timber into the bin provided ‑ ‑ ‑

McHUGH J:   No, that was not the system.

MR DEAKIN:   With respect, your Honour, it was.

McHUGH J:   That was not the system, at all.  That is the paper system.  The system here was no system.  Sometimes you put it in the bin; sometimes you put it on the floor.  That was the system.

MR DEAKIN:   With respect, your Honour, the evidence from the plaintiff was, when he was first asked about it, that he always put them in the bin.

McHUGH J:   Yes, I know, but you overlook the fact, Mr Deakin, that the system is the system which actually works.  An employer can have a thick manual saying, this is the system.  That is not the system the law examines.  It examines the conduct as it operates in the factory.

MR DEAKIN:   Your Honour, we would submit this ‑ ‑ ‑

McHUGH J:   In fact, I was taught in this area of law that the system - you created a system by systematising the plaintiff’s contributory negligence most of the time.  You took the plaintiff’s own negligence and made a system out of it.

MR DEAKIN:   Your Honours, that was not the way the matter was run and it was not the way the trial judge dealt with the issues.  What your Honours are invited to do, and apparently what your Honour Mr Justice McHugh may even be tempted to do is to say, true it was that that was not the way the matter was litigated and true it was the Full Court of the Federal Court has dealt with the matter in accordance with clearly established and correct principles, nevertheless, this Court would be minded to grant special leave because there is another case that could be advanced and extrapolated from the facts of the case.

McHUGH J:   Under section 35A there has been a miscarriage of justice in the particular circumstances of the facts of this case.

MR DEAKIN:   Your Honours, we would submit that this Court is regularly confronted with situations in which its own views on the facts may be different to those of both the court below and those of the trial judge but that does not, of itself, warrant any grant of special leave.  This matter is no different from all of those hundreds and even thousands of cases which come before this Court because what is it that my learned friend identifies as being a special leave point?

McHUGH J:   A very strong case of negligence on the part of the employer.

MR DEAKIN:   Your Honours, we would submit that no matter how strong the case is, it is no more than a question of fact as to whether or not, in this case, any warning was required.

McHUGH J:   We pick these cases up from time to time.  We did it in Devries v South Australian Railway Commissioners, reversed the Full Court which had reversed the trial judge.

MR DEAKIN:   Yes, your Honour, I know your Honours do it but your Honours do it consistently in accordance with principle which says there must be a matter of particular importance to warrant the grant of special leave.  The fact that your Honours may come to a different view on the facts to what other judges may or may not have come to is not a matter, of itself, which warrants the grant of special leave.  We would submit that if your Honours were adopt that practice in this case the volume of applications for special leave that this Court will have to deal with would multiply expedientially because your Honours will then be confronted in every case by an argument that if your Honours come to a different view on the facts then it is a sufficient matter to warrant special leave in the circumstances of individual cases.

Your Honours have assiduously excluded that from matters in which special leave were to be granted and there is nothing different about this case, with respect, your Honour, other than questions of fact and inferences from those facts which the Full Court has applied, we respectfully submit correctly as a matter of principle and consistent with authorities that this Court has consistently applied.

Whatever nice point my learned friend can point to that the two McLean Cases were heard and determined close to one another, if there was any suggestion that the Full Court had to qualify anything that had emerged in Raimondo because of what the Court decided some months later in McLean v Tedman, that would have been corrected - I am sorry, if the Court had been satisfied that anything which occurred in McLeans Roylen Cruises, I apologise, that if anything had occurred in Raimondo were to extend or expand upon what the Court had earlier decided in Raimondo, that would have been picked up in McLean v Tedman and it was not.

There was no suggestion in McLean v Tedman that Raimondo’s Case was wrongly decided or in any way in error and it in turn, as your Honours know, derives from O’Connor’s Case where the first espousal of the principles in relation to warnings occurs.  O’Connor’s Case was adopted and approved without demur in Nichol v Allyacht Spars by this Court with the qualification, that it was accepted by both the Full Court and by the respondent to this application, that it is not only unusual or unexpected dangers that an employer has to warn against.

With that qualification there is no suggestion that the principles are in any way in question and it is, therefore, nothing more than a factual case which was determined on a very limited basis in favour of the plaintiff at first instance as a result of a failure to warn and by the Full Court of the Federal Court unanimously applying those well accepted principles.  To say that it was not a matter, because it was an obvious risk of which the plaintiff was aware, he conceded that, he conceded that the system of work under which he - I know your Honour Mr Justice McHugh has difficulty with that concept - but that was the evidence that the system of work under which he was employed and which he practised was for the off-cuts to go into the bin and that obviated any risk of injury as a result of off-cuts being on the floor.

McHUGH J:But he was injured not in the course of doing his carpentry work, but in the course of fetching a piece of timber.

MR DEAKIN:   But your Honours, there is no dispute ‑ ‑ ‑

McHUGH J:This is a factory, and if the New South Wales Factory and Shops Act applied here, and it would be a case of a statutory breach of what used to be section 40.

MR DEAKIN:   It was not relied upon, your Honour, and that is a matter which your Honours no doubt are somewhat surprised about, but it was not relied upon, and your Honours cannot reconstruct these cases, with the greatest respect, to cure problems which may have occurred at first instance, and by referring to that matter, your Honour, that is with the greatest respect, coming close to it, because your Honour is moving towards a position where this Court will start to cure the defects which this Court perceives in the way cases were conducted at first instance, and with respect, that is not a matter that this Court ought to embark upon.  It was not relied upon, it was not put to the trial judge ‑ ‑ ‑

McHUGH J:It was not set on as a statutory count, not sued on as evidence of negligence?

MR DEAKIN:   No, and the important point that Mr Justice Toohey has raised is important in this case.  The evidence does not establish whether this was a one off off-cut or whether there were numerous or even dozens of these off-cuts on the floor.  What the plaintiff said was, when he was first asked about it, that he always put the off-cuts in the bin.  He did admittedly later say that there were occasions when they had gone on the floor and he did not clean them up, but he did confirm, as the trial judge held, that it was his responsibility to clean them.  And so we know from the facts of this case that it was an off-cut which came from the saw which the plaintiff himself operated, so he left it ‑ ‑ ‑

TOOHEY J:   Do we know that?

MR DEAKIN:   Yes we do, your Honour.

TOOHEY J:   I thought that the evidence did not go that far.

MR DEAKIN:   Well, your Honour, it was put in this way:

it was probably an off-cut -

well that is the balance of probabilities -

from one of the groves cut routinely in the timber -

by one of the saws the plaintiff used.  That appears at page 4 line 18, and that is repeated in the Full Court’s decision.  So the probabilities were that it was an off-cut which he had cut and therefore the probabilities were that it was him that had failed to put it in the bin provided, knowing that that was what the system required.  The plaintiff conceded that he knew it was within his responsibility to clean up any off-cuts which had not been placed by him in the tin provided, and his evidence was, in fact, that was the practice for him to do so.  That is in a portion of the transcript which your Honours do not have, but it is referred to in summary form by the Full Court on page 31 at the top of the page.  To make sense of it your Honour should start at the foot of page 30, but it is the first two lines on page 31:

He was aware that from time to time there were off-cuts of wood on the floor and it was his practice to clean the floor.

That was his evidence.  He conceded that that was his practice to do so.  So the point raised by your Honour Mr Justice Toohey in this case is of considerable relevance, because a conclusion cannot be drawn as to how often it was that these off-cuts found their way on to the floor and, whilst it may be an extreme example to put to your Honours that it may have been a one off off-cut, there is no basis for concluding on the evidence as to how frequent an occurrence it was, and on the time to time basis that it occurred, the plaintiff said it was his practice to clean them up.  So that what we do not know is how often it was not his practice to do so, or how rarely in all likelihood it was that they may have been left there.

We would submit, your Honours, that it is an obvious matter, given what the plaintiff knew of the position, and the plaintiff, himself, described it that if he left it on the floor, he put it in his own words, he would break his leg every day.  Your Honours might think, allowing for some embellishment, that that is a fair description of what may occur, to his knowledge, if he did leave them there.

We would submit that on the facts of this case, the view adopted by the Full Court was clearly open to it and correct, in our respectful submission, that knowing, like everybody else would, that if you cut a piece of timber and you do not put the off‑cut in the bin provided, it may, remaining on the floor, constitute some risk of injury to you.  The Full Court properly categorised it as slight, and we would submit that it would not warrant any grant of special leave, when the Court, correctly applying the principles that have been laid down in Raimondo, and in the cases which have followed it, holding that no warning was required.

Even if your Honours are against us on that, and we would submit that that would be the correct approach - even if your Honours are against us on that - the second basis upon which the Full Court determined the matter is, we would submit, even stronger, because the Full Court determined that, on the balance of the evidence, they could not be satisfied that any warning or notice provided by the employer would have caused the plaintiff to take any greater care.  The plaintiff was not asked in this case what he would have done if some suitable notice or warning or instruction had been given to him.  There was no expert evidence called in the case, and the Full Court was fully entitled to conclude in those circumstances, that when it is an obvious risk of which he knew, namely that he could sustain an injury from a piece of timber, he knew what the system was, the practice was for him to clean it up, how could it be said, on the balance of probabilities, that the plaintiff had discharged the onus which he bore to show that there was a sufficient causal link between the notice or warning or instruction and the injuries which he sustained.

My learned friend advanced to your Honours, we would submit, an adventurous submission that what McLean v Tedman establishes is that, on the issue of causation, the onus of proof is on the defendant.  We would submit that is not anything like McLean v Tedman establishes at all.  What it establishes is that the plaintiff, having proven that the precaution which he advances would have avoided the injury, then it is for the defendant to prove, as an evidentiary onus, we would submit, that it was impracticable for some reason.  That is not the case on the issue of causation.  The law is clear.  The plaintiff bears the onus on the issue of causation.  Neither

McLean v Tedman or the Kingshott Case in the Court of Appeal in New South Wales, establishes anything different.

So, we would submit that, even if your Honours are against us on the requirement of warning, that the causation findings of the Full Court would certainly determine this matter in favour of the employer and that nothing raised in respect of the causation argument, which is an absolute answer to the case, would warrant the grant of special leave.

DAWSON J:   Thank you, Mr Deakin.  Mr Richardson.

MR RICHARDSON:   A couple of brief matters in reply, if I may, your Honours.  The first is that McLean v Tedman goes much further in relation to onus of proof.  It says, at page 314:

In our view, once the appellant was able to point to an alternative and safe system which was practicable in other respects and would have obviated the relevant risk of injury, it was for Brambles ‑

the defendant ‑

to establish that in the circumstances of the case it would have been unable to enforce compliance with the suggested system ‑

That is the principle the Full Court has gone against in this case.

The second this is, I should tell your Honours, that the New South Wales Factories and Shop provisions do not apply in the ACT ‑ this is an ACT case.  There was no similar statutory count that was available.  And, thirdly, can I just invite your Honours to go back, on page 30, to the earlier summary of facts by the Full Court, commencing at point 5 line 16, and recalling, of course, that the worker’s first language was not English, and he gave his evidence in English, the Full Court summarised the evidence this way:

In his evidence the worker had said that there was a rubbish bin into which off‑cut timber was to be thrown.  Later in his evidence in chief he said that the off‑cuts always went in the bin but sometimes it happened that the off‑cuts did not go in the bin and he had no time to clean up because they were always very busy ‑

Now, in a strict analysis of the English words, that is inconsistent, but it is clear what he is saying ‑

He said that sometimes a piece would fall on the floor and that he did not have time to look all the time if there was one piece of wood on the floor.

In cross‑examination he agreed that operating the machine produced numerous off‑cuts and that he would throw them in the bin but sometimes they did not go in the bin.

That is the system of work, your Honours.  My submission is that the Full Court have misapplied Raimondo’s Case ‑ a case which is misapplied by other courts.  My submission is that this case, for an immigrant worker, and substantial judgment is so clearly wrong that the interests of justice demand that special leave be granted.

DAWSON J:   This matter turns on its own facts and does not raise any point of principle which would warrant the grant of special leave.  Special leave is accordingly refused.

The Court will now adjourn.

AT 12.30 PM THE MATTER WAS CONCLUDED