Martone v The Commonwealth of Australia

[1991] HCATrans 134

..

'I

• ~

IN THE HIGH COURT OF AUSTRALIA

Registry No C2 of 1991

B e t w e e n -

ANTONIO MARTONE

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Application for special
leave leave to appeal

MASON CJ DAWSON J MCHUGH J

Martone 1 5/6/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 JUNE 1991, AT 11.38 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, OC:  May it please the Court, I appear

for the applicant. (instructed by Messrs Romano &

Co)

MR R.E. WILLIAMS, OC:  May it please the Court, I appear for

the respondent. (instructed by the Australian

Government Solicitor)

MASON CJ:	Mr Bennett?
MR BENNETT:	If the Court pleases. Your Honours, I hand up

an outline.

MASON CJ:  Thank you. Yes?

MR BENNETT:  Your Honours, the point of importance is the

point in the paragraph numbered 3, although perhaps the clearer error made by the Full Court is the one

appearing in the earlier paragraph. The problem

arises this way: one has a worker who has a series

of accidents when lifting, and they occur;	he is
compensated for them;	he is not given any
particular counselling or instruction;	he

continues to have to lift heavy weights, although

it would be possible for him to be instructed to

take smaller amounts at a time, and perhaps even to

use other mechanical aids. The trial judge says,

"Well these earlier events occurred, this worker

had a lower capacity to lift than other workers."

Whereas with normal workers it is safe to lift

twenty four and a half kilograms, with this worker

it is unsafe to lift 20 kilograms; the employer

knew of the same accidents; His Honour then used
the unfortunate phrase that they had occurred in
exactly similar circumstances, which was a slight

inaccuracy but not really relevant to what

His Honour was saying, and the liability was found.

There was clear evidence, I should say, that the

plaintiff was a person who was more vulnerable as a

result of the earlier incidents.

What the Full Court then says is, "You have

got to look at all the circumstances. You worked

for five and a half years between the last incident

and the relevant one" during which he did not have

anything wrong with him and did not have any

problems with his back, therefore looking at it as

a whole, a reasonable employer, the Full Court

says, without any other evidence, would not have

been concerned to have special counselling or

anything else.

The fallacy in that, Your Honours, is that it

looks only to the end of the period. If the only

negligence alleged is failure to counsel on the day
of the accident or immediately prior to it, one

might well say, "Well, the employers ,had five and a

Martone 5/6/91

half years" as the Full Court said, "why should it

counsel him specifically when he has managed for

four and a half years without it?".

But of course, the relevant omission is not

the omission to counsel one minute before the

accident. The relevant omission is to counsel over

the whole of the period and the argument of the

Full Court, that he had four and a half or five and

a half years without an accident in the meantime,

is simply irrelevant to that. That may be relevant

at the end of the period, but if he had been

counselled at the beginning of the period, it may

have had the desired effect that he did not carry

heavy weights towards the end of it; if he had been

counselled in the middle of it or towards the

beginning, but the Full Court just says, "Well, you

did not run the case on the basis that there was an
immediate failure to counsel in 1979", in fact the

case was simply put on the basis of an omission; an

omission is not identified by reference to time.

If one does not do something within a period of

five and a half years, one cannot say, "At what

point do you say the employer did not do it?".	The
answer is, he did not do it over the period, and
that, we submit, is an error of principle and an
important error of principle.

Now, if I can just take Your Honours briefly

to support that, a reference to the passages,

His Honour's decision, the relevant part of that is

at page 9, first of all, of the application book,

where His Honour says at line 30:

I am satisfied that the safe maximum lift

for 75% of healthy workers aged between 18 and

60 years is 24.5 kgs or 53.9 lbs, but

different circumstances arise when an employer

knows or ought to know that an employee has

from time to time suffered from an injury to

his back when lifting. In those

circumstances, it seems to me that the

employee ought to be instructed on safe

lifting practices -

et cetera. And as I said, there was medical

evidence that this worker, because of the condition

of his back, as occurring after the earlier

incidents, was such that he had a lower safe

lifting capacity.

At page 13, after referring to how easy it

would be to give him counselling and how a trolley

might not have been a practicable solution,

His Honour at line 34 says this:

Martone 3 5/6/91

In the circumstances, I am satisfied that

the defendant was negligent. I do not think

it matters that the amount of paper which the

plaintiff might have carried at any one time

was not in excess of 20kgs. He had been injured in exactly similar circumstances

before. The defendant should, through its

officers, have appreciated that to ask him in

effect to continue to lift boxes of that
weight or to raise them above waist level or

to bend to put them down was to put him at

serious risk of further damaging his back.

The reason it was not exactly similar was this:	on
all the other occasions what was involved was
paper.	I will just lift these very quickly for

Your Honours. In 1974 he was lifting paper from

the bench to a platform. In 1977 he was lifting

paper from the floor to a bench. In 1978 he was

lifting paper from a machine to the bench, and in

1979 he bent down to put paper in a machine. The

current incident occurred when he picked up papers from the hallway and carried them along a corridor and raised them further to a machine.

It really is irrelevant to the point, we would

respectfully submit, to say "Ah, they are not

exactly similar". Maybe one can say that different

parts of the back might have been involved in

relation to some of those incidents. But where

there have been four incidents lifting paper in one

way or another and a fifth incident occurs

substantially in relation to the lifting of

paper - because what was said was when he started

carrying it along the corridor he felt a mild pain

and then a much more serious pain when he lifted

further at the end of it - these were four relevant

purposes exactly similar. But that, of course, is

not the special leave point. That simply shows the

error, because what the Full Court said on that at

page 38 line 30 was:

In our opinion there is much force in the

submission that His Honour was wrong in his

finding of fact that in the subject accident

the plaintiff had been injured "in exactly

similar circumstances before". If that

finding of fact is incorrect, His Honour's

conclusion that, with its knowledge of the

plaintiff, the defendant ought to have

realised that the task he had been asked to

perform involved a serious risk of injury is

difficult to support.

That, we submit, is a complete non sequitur. There

is no reason why it has to be exactly similar for

Martone 4 5/6/91

that matter to be relevant and arise on the

evidence in this case.

The special leave problem arises when one gets

to page 41. There the Full Court says just after

line 25:

If it be the -

I am sorry, perhaps I should start at line 25.	He
says:

All of them involved ligament damage. Anybody

who reviewed the plaintiff's injury record

after the 1979 incident might well have

concluded that he would benefit by counselling

regarding lifting techniques and/or the

judgment of his lifting capacity. If it be

the case that the defendant failed to provide

any such counselling in 1979, it is arguable

that it thereby breached its duty of care to

the plaintiff. However, no such case was

alleged by the plaintiff.

The plaintiff alleged a general case, Your Honours, of non-counselling. So it did not tie it down to a

particular period. So the facts relating to the

1979 incident were not explored - - -

McHUGH J: But does not what appears in the Full Court

judgment at 41 reflect what is said at page 10,

lines 25 to 30:

That sort of advice, given, as I find, after

the 1984 accident, was exactly the sort of

advice which the plaintiff should have been

given earlier and certainly by as late as the

1979 accident.

Is that not all that is a reflection of?

MR BENNETT:  Your Honour, that is the advice given after the

1984 accident.	So that is after the events have
occurred.

McHUGH J: Yes, I know, but His Honour the trial judge was

saying that it should have been given earlier.

MR BENNETT:  Yes, and we adopt that. And we never resiled

from that at the trial. We did not say at the

trial, "We put it on the basis of not being at that

time but being later". But what he says is:

In particular, no attention was paid to the

circumstances of his return to work on that

occasion.

Martone 5/6/91

There may be no evidence about that but we know

there was no counselling at that point.

We do not know what evidence might have

emerged if the plaintiff had based his case on
the lack of counselling ...... the plaintiff's case against the defendant focussed entirely

on the events of 23 October -

the plaintiff -

contended that the defendant was negligent in

requiring or allowing him to lift 20 kilograms

That is so. That was the primary allegation of

negligence. But if Your Honours were to go to the

particulars at pages 3 to 4, Your Honours will see

the allegations were:

requiring him to carry out work which was too
heavy in the circumstances having regard to
the back injuries previously suffered by him;

requiring him to continue carrying out work

when it knew or ought to have known that he
was susceptible to risk of

injury ..... directing him to move boxes of

reams of paper when it knew, or ought to have

known, that they were too heavy, having regard

to the plaintiff's circumstances; failing to

provide a trolley -

"failing to provide a trolley" was rejected, and -

failing to warn him of the risks of injuries

to which he was being exposed; and failing to

warn him of a risk of injury of which it knew

or ought to have known.

And what the Full Court seems to be saying is,

because we did not stand up and say, "That is a

failure to warn immediately after the 1979

accident", as a direct matter, for some reason one

is not entitled to rely on that.

McHUGH J: Well, your case is that this is a Paris v Stepney

Borough Council type case where the worker has a

special disability and, therefore, the duty is owed

to him personally and he needs personal

instruction. Whatever the instruction you might

give generally to your employers, this person

because of his special problem needed a specific

instruction.

MR BENNETT: With this distinction, Your Honour, that in

Paris v Stepney Borough Council, one was concerned not with the likelihood of an accident occurring to

Martone 6 5/6/91

him but with the consequences of it.	It was the
one eye and the two eyes.

McHUGH J:  But of the consequences of it, yes.

MR BENNETT: Here, it is rather he is a worker more likely

to have an accident if he lifts a heavy load. But
the principle, we would submit, is the same; this

was a worker who required special attention. The

error which, we submit, is of general importance is

saying that one interprets that sort of set of

particulars, which are a very common set of
particulars in an industrial accident, as placing
the failure at a particular point. So, if one can
say, "The moment before the accident it was
reasonable for this employer not to counsel or warn
because five and a half years had occurred since

the prior events", that ignores the fact that the

failure to counsel or warn is really a continuing

omission over five years and that comment is only

available for the last part of that five years.

McHUGH J: But, Mr Bennett, what is the special leave point

in this? The highest that you can put is that it

is just an erroneous conclusion by the Full Court,

is it not, on the evidence?

MR BENNETT:  Your Honour, it goes a little higher than that.

This is a case where - the special leave point is,

when one relies, as one of one's particulars, in a

failure to counsel or perhaps, as in this case, an

instruction to do something without having

previously counselled, the question is whether it

is an answer to that to say, "At the moment the

instruction was given it was reasonable to fail to

counsel", or whethe~ the true question is whether

there was a continuing obligation over the whole of
the period on the basis that if counselling had

occurred at any time during that period, it might

have alleviated the problem.

In that sense the Full Court has asked the

wrong question and come up with an answer which, we

say, is not one it is entitled to come to anyway.

It should have sent it back if it was really going

to have that issue determined. What it has done is

to say, "Well, because there's a reason for not
counselling at the last minute, we take the view

the plaintiff must fail", and ignored the fact that

it is a continuing matter, not a final matter. And

that is a matter of general importance.

In addition, Your Honours, it is a matter - I

do put it on this basis as well - where the

interests of justice require special leave to be

given. This is an injured plaintiff who is

permanently incapacitated by an accident at work,

Martone 5/6/91

who received a verdict of, something like, $400,000

and has had that taken away from him by error, in a

matter where this Court can put it right in an

appeal that really will not take more than an hour

to argue. At the longest, assuming long winded counsel on both sides, which will not happen on

either side, I am sure, it might take two hours.

But it is a very short appeal, the factual matters

that would need to be explored are very short, and

the Court can remedy, if it does so, a serious

injustice, and, in my respectful submission, if the

Court is not satisfied that the question is of

general importance, but is satisfied that the Full

Court was wrong, this is a case where the appeal

would be so short that the balancing of the need

for this Court to limit special leave and the

injustice to the plaintiff results in it being a

case where special leave should be granted.

The only other matter I should mention is that there is an analogy in relation to my point about

the proof of the negative in relation to what was

said by Your Honour Justice McHugh and adopted by

the whole of the Court in Abalos in the very last

paragraph of the case. It is 96 ALR 354, on the

last page at 364, and Your Honour there said at

line 3:

The question on the foreseeability issue

was not whether the omission to provide proper supervision gave rise to a foreseeable risk of

injury. It was whether the conduct of the

defendant in requiring the plaintiff to work

in this system gave rise to a reasonably

foreseeable risk of injury. If it did, the

plaintiff was exposed to an unnecessary risk

of injury if the injury was reasonably

avoidable and in all the circumstances the

failure of the defendant to eliminate the risk

was unreasonable.

But that failure to eliminate is something at which

one has to look over a period, not at a point in

time, and it is that which gives the case its

importance. May it please the Court.

MASON CJ: Thank you, Mr Bennett. Yes, Mr Williams.

MR WILLIAMS: If the Court pleases, the primary allegation

ot negligence was that the task that the applicant was required to carry out in 1984 was a task which

involved a risk of injury because of the weight
involved in fetching and bringing the paper from

wherever it was to his machine.

The plaintiff failed in respect of that

allegation, but there was a secondary allegation,

Martone 5/6/91

and it was this: that the plaintiff was a person

with a special disability which was known, or ought

to have been known, to the employer, and

consequently there was a special duty.

To support the allegation that there was a

special duty owed, the applicant relied upon

certain incidents which occurred between 1974 and

1979, or rather relied upon that information which

the employer had about those incidents, and what

the employer knew about those incidents was this,

Your Honours: that in 1974 the applicant had

strained ligaments in the coccyx area of his spine;

that in 1977 he had had an occurrence of pain in

his chest; that in 1978 he had had a backache or a

back strain and in 1979 a strained muscle; all

occurring when he was either transferring paper

from a work bench into a printing machine, which

was close to the ground, or alternatively

transferring material that had been printed from

the machine to the work bench.

Of itself, the Full Court can be taken to have

concluded that that information, which was all that

was proved to be in the knowledge of the employer,

back in 1979, is just plainly insufficient to found

an argument that an employer ought to be on notice

that the applicant is at risk of further injury.

MASON CJ:  Why? I would have thought, having regard to the

number of incidents all reflected in trouble with

his back, that that would be sufficient to put an

employer on notice, particularly as he was off work

for some time in relation to each of the incidents?

MR WILLIAMS: Yes, in each of the instances he was off work

for several days, well, Your Honour - - -

MASON CJ: It was more than several days in some instances,

was it not?

MR WILLIAMS:  It ranged from a few days to about two weeks I

think. In relation to the 1974 incident the injury

notified was strained ligaments in the coccyx

region which, on the face of it, is a one off

incident similar to a sprain. The second incident

was a pain in the chest which hardly can be said to

alert an employer to potential problems with a back

injury, and the incidents in 1978 and 1979 were

recorded as being back strain or back ache on one

occasion, and a strained muscle on the other. Of

themselves, Your Honours, they do not indicate more
than specific incidents of sprain or strains in the

course of carrying out the job.

Martone 9 5/6/91

McHUGH J: But that is enough, is it not? The employer does

not have to foresee the precise risk of injury that

occurs to the plaintiff; he has only got to see, in

a general way, that the plaintiff is exposed to a

risk of injury and this employer would have to be

blind not to have foreseen that this man who had

suffered three back injuries in 1974, 1978 and 1979

was not exposed to a risk of injury to his back if

he continued lifting.

MR WILLIAMS: Three strains or sprain type injuries, two

generally said to be in relation to the back and
one in respect of the coccyx area over five years,
all injuries which are said to resolve and did

resolve within between a few days and a couple of

weeks.

McHUGH J:  But he was off work for seven days in the 1974

occasion, seven days in the 1978 occasion, five

days in the 1979 occasion.

MR WILLIAMS:	Your Honour, if on any one or more than one of these occasions there had been an indication of
lumbar disc disease or an indication of a
predisposition because of degenerative changes in
the lumbar spine or any indication along those
lines, one would say that an employer, with that
knowledge, ought to have taken some action, but
when all that was proved against the employer was
that it had notice of these incidents, producing
symptoms described in the way they are described as
back aches or back strains or strained muscles,
that alone, in our submission, and without the
benefit in the trial of any expert evidence from a doctor or a rehabilitation specialist or any other person, to say that,· armed with that slight
knowledge an employer ought to have taken some
action, we would submit it is insufficient.

McHUGH J: All I can say is that the workers in the

Australian Capital Territory must be a hardy race.

They are not exposed to foreseeable risk of injury	under these circumstances; an employer has got to
do nothing.

MR WILLIAMS:	We say, Your Honours, that the trial judge's decision really pivoted on the fact that His Honour
found that the employer was injured in exactly
similar circumstances before, as going to support
His Honour's conclusions that in the circumstances
of this particular case there ought to have been
something done by the employer in relation to this
particular fellow.

McHUGH J: They should not have had him lifting weights of

this magnitude, having regard to what the norm was

for healthy workers, but at least he should have

Martone 10 5/6/91

given him some sort of counselling and advice. Why

should not the court grant special leave? Here is

a plaintiff who has had a verdict of $400,000-odd

taken away from him in a case which, prima facie,

is the majority judgment is wrong.

MR WILLIAMS: Well, Your Honour, we would submit that to

present a worker who suffered from - in terms of

what was proved to the knowledge of the employer -

in 1974 and 1977 a coccyx problem and a chest

problem and two back strains or strained muscles in
1978 and 1979, who then proceeds to work without

any complaint or any problem for five and a half

years, taking advantage of consistent overtime, and

then is injured in circumstances where he is

walking along carrying a weight below the safe

maximum and suddenly experiences an onset of pain

in his back -

McHUGH J: But that is an argument about causal connection,

which is not the way the Full Court approached the
matter. It would be one thing to say, "Well, there

was a breach of duty but it was non-operative; it

was not an operative caused by 1984", that was not

the way the case was run.	The court said there was
no breach of duty.	Surely it is arguable that the

Full Court was in error in holding that there was

no breach of duty.

MR WILLIAMS:  The Full Court held that what was proved to

the knowledge of the defendant - I beg Your

Honour's pardon - to the respondent, was just

insufficient to found an argument that the employer

ought to have regarded the applicant in this

particular case as a person with a disability.

That is a question of fact. A coccyx injury and a

sprained muscle, without more and without the

benefit of any expert evidence as to what a

reasonable employer should have or ought to have

done armed with that slender knowledge about some

incidents that occurred between 1974 and 1979, the

Full Court said, on the facts, was not enough.

We would submit that on the face of it - it is

all argumentative and probably does not assist the

Court very much but, on the face of it, having

established that in 1978 an employee had a back

ache or a back strain which put him off work for

several days, and a sprained muscle in 1979 when

bending over either placing paper in a machine or

getting paper out of a machine, provides an

argument or places the case into a category whereby

the respondent ought to regard the worker as a

special person, is not a surprising result.

Martone 11 5/6/91

In answer to the application for special

leave, we would simply say that it is a case that

turns on its own facts.

MASON CJ: Yes, well I think you may be on stronger ground

there, Mr Williams.

McHUGH J:  What about 35A of the Judiciary Act? Look at the

justice of the particular case.

MR WILLIAMS: Well, I can only put as to that, Your Honour,

that on the face of it, it is not a surprising

decision in the Federal Court.	I hear what
Your Honour is - - -

McHUGH J: It is surprising to me at the moment, without

having heard an elaborate argument.

MR WILLIAMS: _well, all that was proved, really, having been

to the knowledge of the respondent at any time

between 1979 and 1984, were the fact of those four

accidents, and nothing was led which took the

knowledge of the respondent before that, and

nothing was led in the evidence - - -

McHUGH J:  What about Braistina: this Court upheld the

judgment in Braistina where there had not been

anybody in the factory - had not been injured in 20

years, and nevertheless a worker injured his back

lifting something and the Court said that a

reasonable employer should have foreseen the risk?

MR WILLIAMS:  I do not know whether the worker in that case

was performing a task which involved carrying a

weight within the s~fe maximum range.

McHUGH J:	No, I do not think he was, if I remember.
MR WILLIAMS:	But certainly that was the case here and it

was the case that he was carrying and performing a

task he had performed for a number of years,

safely. I do not really think I can assist the

Court - I will not assist the Court by being

repetitive - - -

MASON CJ:  No, that is clear. You are on strong ground

there, Mr Williams.

MR WILLIAMS: It really does not - Your Honours might think

that the Federal Court - I will withdraw that.	The
Federal Court concluded that to have proved a backache and a strained muscle and whatever in

those periods was simply insufficient to establish
that the plaintiff ought to be treated as a person

with a special disability. We would submit that

that was open to the Federal Court, particularly in

the light of the fact that no evidence was led at

Martone 12 5/6/91

the trial of a specialist nature to suggest that

armed with that knowledge, a responsible employer would act differently to the way it acted. Those

are our submissions.

MASON CJ: Thank you, Mr Williams. Yes, Mr Bennett.

MR BENNETT:  A number of short points. The first injury was

not an injury to the coccyx. It was strained

ligaments in the region of the coccyx and, of

course, the coccyx is part of the back.	The
region, of course, is the lumbar region.

I have made the point that the reference to

being exactly similar was not part of the ratio of

His Honour's decision, nor was it necessary for him

to reach that conclusion. My learned friend did not deal with the second point, but I simply say

this about it in relation to general importance.

If the decision of the Full Court stands and is

accepted as the law, leaving aside its application

to the facts of this case, it is open to an

employer, where something occurs to an employee

giving rise to an obligation to warn, to fail to

warn, to fail to counsel, and then after five years

if an accident occurs to say, "Well, it was

reasonable after five years not to counsel because
all the time that had gone by without an accident",

ignoring the fact that it is a continuing duty as

to which that can only be said at the end of the

period.	And that, we submit, is an important
matter in the law of industrial accidents.	May it
please the Court.

MASON CJ:  Thank you, Mr Bennett. The Court will take a

short adjournment to consider what course it will

take in this matter.

AT 12.10 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.21 PM: 

MASON CJ:  What I am about to say expresses the view of the majority of the Court. We are not persuaded that

this case raises any question of general principle.

The issue was whether, in the particular

circumstances of the case, the respondent came under an obligation to counsel or instruct the

applicant in relation to the lifting of objects.

As such the case turns on its own facts and is

Martone 13 5/6/91

unlikely to result in an elaboration of general

principle. The application is therefore refused.

MR WILLIAMS:  Your Honours, I hesitated, I thought another

member of the Court was going to say something

first. I would ask for costs of the application.

MASON CJ: That was what I was waiting for.	Mr Bennett?
MR BENNETT:	Your Honours, it is the Commonwealth and it is

a case where there is serious doubt about the decision below; it is in Your Honours' hands.

MASON CJ:  Mr Williams, are you minded to show any mercy or

not?

MR WILLIAMS:  I am instructed to ask for costs, I shall not

put any arguments to the Court, Your Honour.

MASON CJ:  The application will be refused with costs.

AT 12.23 PM THE MATTER WAS ADJOURNED SINE DIE

Martone 14 5/6/91