Liddiard v Bostik Australia Pty Ltd & Anor

[2010] HCATrans 19

[2010] HCATrans 019

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S177 of 2009

B e t w e e n -

WARREN EDWARD LIDDIARD

Applicant

and

BOSTIK AUSTRALIA PTY LTD

First Respondent

BROLTON INDUSTRIES PTY LTD

Second Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 2010, AT 2.29 PM

Copyright in the High Court of Australia

MR A.S. BELL, SC:   If the Court pleases, I appear for the applicant with my friend, MS K.J. WILLIAMS.  (instructed by W.G. McNally Jones Staff Lawyers)

MR J.E. SEXTON, SC:   May it please the Court, I appear for the first respondent.  (instructed by Lee & Lyons Lawyers)

HAYNE J:   Yes, Mr Bell.

MR BELL:   Your Honours, the work site involved in this case was acquired and the system of work involved in this case was inherited by the respondent, Bostik, from the previous occupiers and operators of the site, Dow Corning.  The work system involved did not change once Bostik came in.  Your Honours will see that in the application book at page 87 in paragraph 14.  This is part of her Honour Justice Beazley’s judgment but not relevantly controversial.  Those facts are set out there about the continuation of the system and the site.  Now, there was no suggestion in this case that Bostik gave any consideration to changing the system, nor is there any suggestion that Bostik retained Brolton, the contractor, to change or review the system.  The next point is this.  The respondent conceded and so Bostik conceded, certainly in the Court of Appeal, that the system of work was defective.  Now, that is the starting point.  A system of work inherited and a concession that it was defective.

When one takes those matters into account and adds the following six matters, which I will take the Court to, which we would describe as salient matters relevant to the finding of the presence or otherwise of a duty of care, when one takes those matters combined with the six matters I am going to come to, in our submission, the conclusion by the majority of the Court of Appeal, over the strong dissent of Justice Beazley that no duty of care arose in this case, is a startling one.  The error is glaring and in circumstances where this is not an unusual or a unique form of work arrangement this is a case which calls out, in my submission, for the intervention of this Court through the grant of special leave.

HAYNE J:   Does Mr Liddiard retain his judgment against Brolton?

MR BELL:   He retains that judgment, subject to the following matters.  He had a judgment for approximately $500,000.  The judgment, at first instance he received it against Bostik, was for 650,000, but the judgment against Brolton was reduced by the workers compensation payments and, further, it is a judgment which did not attract any award of costs because of the operation of the particular regulations under the Workers Compensation Act.  Now, that means, if the purport of your Honour’s question, did he not get a verdict which was close to, there is, certainly for him, your Honour, a very significant amount at stake in this case. 

HAYNE J:   But the case you seek to make here is that it is in the interests of justice in the particular case that there be a grant?

MR BELL:   Both, your Honour.  The reason why we put it at both, both in the particular case and in the general case, is this.  There are relatively short and now uncontroversial facts in this case and in circumstances where a very experienced trial judge and a very experienced judge of the Court of Appeal come to one view about the existence of a duty of care and two other judges come to a diametrically opposed view as to the existence of a duty of care, is a reason why, in my submission, looking at the matter generally rather than in this specific case, it is in the public interest that a grant of special leave is granted.  It suggests that there is a need for guidance by this Court, maybe some further consideration or refining of Stevens v Brodribb and the role of control, et cetera, because, of course, the vice we point to in the majority judgments is that their Honours did not look at entitlement to control, their Honours looked at the absence of control and used the absence, in fact, of control as a reason to find an absence of duty, whereas, Justice Beazley and the trial judge found the existence of the ability to control combined with the fact, candidly accepted by the supervisor from Bostik that he regarded himself as responsible for the system of work, including in the smoko shed, including in relation to the removal of rubbish, makes this a glaring case.  But what Justice Beazley characterised the absence of control as being was an abrogation of the duty.  The majority found it as somehow evidence of or probative of an absence of duty.

Now, when judges of an intermediate Court of Appeal before which comes, as your Honours now, hundreds of common law work injury type cases, when members of the Court of Appeal are as diametrically opposed on basic issues like that, the matter is one which, accepting obviously it has its own unique facts or its own specific facts, but accepting that, is one nonetheless worthy for the Court’s consideration.  Your Honours, the six additional salient facts we wish to point to in addition to that inherited continuity of work system are these.  Bostik was the occupier of the site, a fact recognised by this Court in Thompson v Woolworths (2005) 221 CLR 234 at 243 as an important:

aspect of the relationship that gave rise to the duty of care.  It gave the respondent a measure of control that is regarded by the law as important in identifying the existence and nature of a duty of care.

Not as an occupier in a pure occupier’s liability sense, but as one of the salient matters bearing on the question of whether a party in Bostik’s position bore a duty of care or owed a duty of care in addition to the employer.  In addition to being occupier, Bostik was the owner of the equipment used in the cleaning process.  That equipment included not just the forklifts and the skips, but also the very bin, the movement of which was central to the injury.  It was their products, their goods and the suggestion in the dissenting judgment and from the unchallenged expert evidence was had that bin been used for that purpose been differently configured, either with a tilting mechanism or wheels, for example, the injury would have been averted. 

So occupation, equipment, ownership and then one had the following very significant evidence, your Honour.  If I could take your Honours to page 101 of the application book which conveniently sets out here, in paragraph 58, that the person being cross‑examined was the officer of Bostik, not of Brolton, of Bostik.  The questions could not have been more directly or more clearly put and I draw your Honours’ attention, in particular, the questions in bold:

Q.       The system of safety that you were responsible for did that include the smoko shed?
A.       Yes.

Q.       And the waste removal from the smoko shed?
A.       Yes.

Now, that system, that work and that responsibility went precisely to the circumstances in which my client, the plaintiff, suffered his injury and for the court to find, or for the majority of the court to find in light of that evidence and some other matters to which I have referred, is, in my submission, not just wrong, but with the greatest respect to the majority, glaringly wrong.  It is a very surprising conclusion and it would, to the man in the street, be an extraordinarily surprising conclusion to reconcile the conclusion of the Court of Appeal with the unequivocal, unambiguous statement as evidence of fact, not as an admission, but as evidence of fact that that was his responsibility and he considered that and he did not seek to escape it.  What he said was, “Well, I just left it.  I just left it to Brolton.”  Justices Ipp and Basten seized on that fact as somehow negativing the duty.  We say that fact is powerful evidence of breach of a duty which existed far from being evidence able to be deployed in favour of a conclusion that no duty existed at all.

Your Honour Justice Hayne said to me, “Well, do you put it in the visitorial sense, the specific facts of this case?”  As I have said, on the duty question no, we have the general argument as well.  On the breach question, I suppose, it does turn on the specific facts of the case for this reason.  There was a concession in the Court of Appeal which is reproduced in our written submissions, your Honours, in the application book at page 146.  My learned friend, Mr Sexton appeared in the Court of Appeal.  He accepted, indeed embraced:

that this is an injury which was suffered because of a defective system of work.  There’s no issue, I don’t think, about that –

. . . 

The only possible argument against there being a defective system of work was that manually lifting this bin was so obvious that nothing was required to be done by anyone.  That’s not the finding that was made and we haven’t challenged the finding, nor do we challenge that finding so far as the second respondent is concerned. 

He points out the second respondent was Brolton, and he says –

So to that extent we’re stuck with there being a defective system of work.

Now, your Honours, for the majority to have found, including by reference to Justice Ipp’s judgment by reason of the obviousness or the self‑evident precautions that could have been taken, for them to have found that there was no breach by reason of that matter in the face of a clear concession, in my submission, amounts to nothing more or nothing less than a denial of natural justice to procedural fairness to Mr Liddiard.  That is on the breach question.  But there is a general point of importance, your Honours, as I have indicated on the duty question. 

This work site was not one only available – this particular smoko shed was not one only available to Brolton employees it was available and used by Bostik’s employees.  Bostik’s employees got the benefit and Bostik’s supervisor, Mr Pearce, not only assumed responsibility, but quite contrary to what Justice Ipp indicated, not exercising any control at all.  In our submission, your Honours, there is evidence that if, for example, he saw Brolton employees not doing their work, not doing something, he would raise it.  He would raise it with Brolton.  Now, that is a true measure of control.  He was in a position to control, he was in a position to give directions and did so.

It is a very different case because of the absolute informality of the arrangements to a Leighton Contractors v Fox type of case where, in a major construction project, there will be clearly delineated in written contracts statements of the responsibility of the respective parties and where that delineation is done in contractual form and that contractual form is matched by the actions on site, in other words, is not undermined by how the parties have, in fact, conducted themselves, that is one matter and that

issue was properly dealt with by this Court in Leighton v Fox.  But our friends say, “Well, you have looked at this in Leighton v Fox and that is the end of the story”, but this is a very different factual circumstance.  Not one, we say, which is unusual, one which obviously has its own unique features, but as a broad proposition, not unusual and for those reasons, your Honours, the suggestion by our learned friend that these matters have been looked at, dealt with in Leighton v Fox should be rejected.

We conclude really, your Honours, by making this point, that it is a matter of public interest in circumstances where there are diametrically opposed conclusions on very short uncontroversial facts as to whether or not a party owes a duty of care or not is a matter of public importance; not just because of the public perception, but how can we be in a position where such a question as basic as that remains unclear.  It is important as a matter of pubic interest that practitioners be able to advise with clarity whether a duty of care is owed or not so people are able to make their arrangements, make their insurance arrangements, make their work allocation arrangements, et cetera.  One would not have confidence, in my submission, if one looked at this judgment of the Court of Appeal.  One would struggle to reconcile the conclusion of absence of duty with the evidence, unqualified, of responsibility for that and one would be left wondering what the law is with regard to what is an important question for common law exposure.  May it please the Court.

HAYNE J:   We will not trouble you, Mr Sexton.

We are not persuaded that it is in the interests of justice generally or in the interests of justice in the particular case that there be a grant of special leave to appeal in this matter.  Special leave to appeal is refused with costs.

AT 2.45 PM THE MATTER WAS CONCLUDED