Millington v Wilkie

[2005] HCATrans 778

[2005] HCATrans 778

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S132 of 2005

B e t w e e n -

PETER RAYMOND MILLINGTON

Applicant

and

MAX WILKIE T/AS MAX WILKIE PLUMBING SERVICES

First Respondent

DARLING HARBOUR AUTHORITY

Second Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 30 SEPTEMBER 2005, AT 10.23 AM

Copyright in the High Court of Australia

MR H.N. KELLY, SC:   If the Court pleases, I appear with MR T.F. McKENZIE for the applicant.   (instructed by J.P. O’Neill Solicitors)

MR M.J. NEIL, QC:   May if please the Court, I appear with my learned friend, MR L.J. ELLISON, for the first respondent.   (instructed by Rankin & Nathan)

MR A.D.M. HEWITT, SC:   If your Honours please, I appear for the second respondent.   (instructed by Curwood & Partners)

GLEESON CJ:   Yes, Mr Kelly.

MR KELLY:   Your Honours will see from the papers that the substantive point of this leave application is whether or not there exists a principle which excludes recovery of damages by a worker for his employer’s breach of statutory duty on the basis that such a duty is not owed to the employee or that the employee cannot recover for breach of the duty where the employee’s conduct caused the employer to breach the duty without fault on the part of the employee.

GLEESON CJ:   Or putting it another way, whether the breach was solely the result of the fault of the employee.

MR KELLY:   Yes, your Honour.  Just briefly, your Honours, the applicant sustained injury in September 1997.  There is no issue as to the findings of fact in the matter.  The primary judge’s decision relevant to this argument is set out at page 17, paragraph 25 of the primary judge’s decision as to the statutory counts.  These are repeated in the application book at page 39.  What we put to the Court as important is that no breach of the statutory duty was found as against the applicant.  That is an important part that I will come – well, indeed, I can simply say that when I come to the matter of Ginty, your Honours will see that that was a threshold requirement.  That appears at paragraph 43 of the judgment in Ginty.  That is a breach of what was described as a coterminous or coextensive duty of both parties.

GLEESON CJ:   Well, this is covered in paragraph 43 on page 47 of the application book.

MR KELLY:   Yes, your Honour.  Essentially, the plaintiff, the applicant in these proceedings, failed because he disobeyed instructions about using the ladder and was found by the trial judge aware of the risk of using a ladder not secured.  The applicant sustained injuries in the course of his employment furthering the interests of his employer, the first respondent.  He was not involved in any skylarking escapade, nor indeed was there any suggestion that he wilfully injured himself on this occasion.  The Court of Appeal, we submit, is in error in seeking to distinguish Andar Transport in that, although the reasoning in Ginty, Ross and Boyle was decisively disapproved by this Court, the result of such reasoning retains persuasive weight. 

We contend that the Court of Appeal fell into error in arriving at this decision.  The reasoning in Ginty and the other two cases led to the conclusion that a worker whose injury was solely due to his fault is disentitled to recover.  This Court effectively decided Ginty and the other two cases were wrong.  An employer is not entitled to succeed in an action brought against it pursuant to a breach of statutory duty simply on the basis that the sole or effective cause of the worker’s injury was the worker’s conduct.  This Court in Andar has warned against the consequences of the imposition of limitations on the right of employees recovering from employers for breach of the employer’s strict statutory obligation.  Nowhere in the judgment in the Court of Appeal is there any consideration of the statutory mechanism for the apportionment of responsibility between employee and employer.  This Court emphasised in Andar the necessity for such an inquiry to be conducted.

GLEESON CJ:   Can I take you back to paragraph 43 on page 47. 

MR KELLY:   Yes, your Honour.

GLEESON CJ:   The present was not a case where the employer was sued for breach of duty to provide a safe system of work, was it?

MR KELLY:   I beg your pardon, your Honour.  Yes, it was, your Honour.

GLEESON CJ:   Could you look at paragraph 43.  I will ask you the question this way.  Please let me have your comments on paragraph 43 on page 47 of the application book.

MR KELLY:   Well, the only matter I can put to your Honour is that the duty certainly was not delegated to the employee.

GLEESON CJ:   That is a key passage in the reasoning of Justice Hodgson, is it not?

MR KELLY:   Yes, your Honour.

GLEESON CJ:   So we want to hear your submissions about it.  It could be critical.

MR KELLY:   I simply can only repeat what I said, your Honour.  The duty of care cannot be delegated.  In this case – to put it another way, your Honour, it was not the obligation or duty of the worker to perform the statutory obligation. 

GLEESON CJ:   What about paragraph 41?

CALLINAN J:   Paragraph 41 seems to me to be the key because whether it is breach of statutory duty or negligence, there still has to be causation.  I do not see how anything that the employer did could have been causative.

MR KELLY:   Well, your Honour, simply let me put this, causation effectively is decided in the worker’s favour, the trial judge having already found a breach of the statutory duty ‑ ‑ ‑

CALLINAN J:   Yes, but I do not understand how that could have been, how that was even a breach of statutory duty.  But assuming there was, how did the breach of statutory duty cause the injuries?

MR KELLY:   Well, the ladder was not secured.

CALLINAN J:   No, the cause of the injuries was the plaintiff’s determination to use it contrary to instructions.  I hear your junior saying that the duty of an employer is a duty of a company and duty somewhat distinct, but there are some duties that it does not matter what is done and whether they have not been fulfilled or not are still not causative.  I cannot see how anything that the employer did was causative.  Paragraph 41 to which the Chief Justice has just referred seems to me to apply equally to a breach of statutory duty as it does to negligence.

MR KELLY:   Your Honour, the employer left the site.

CALLINAN J:   What, does the employer have some obligation to stay on the site to keep every employee under close scrutiny at every second?

MR KELLY:   His statutory duty, with respect, your Honour, is to secure the ladder and in those circumstances, your Honour, that was not done and there was a breach.

CALLINAN J:   But that breach was not the cause.  The cause was the worker’s determination to climb it and use it contrary to instructions.

MR KELLY:   Your Honour, I can only go back to my argument that it is not the sole cause, your Honour.  The breach that has been found against the employer raises an entitlement and that is what we say this Court said in Andar and in those circumstances he ‑ ‑ ‑

CALLINAN J:   This is quite a different case from Andar.

GLEESON CJ:   Correct me if I am wrong.  I am anxious to understand the reasoning that you are grappling with.  Am I right in thinking that the essence of the reasoning of the Court of Appeal was this.  This was a claim for a cause of action based on a breach of a statutory duty.  The essential question in such a case is for whose benefit was the statutory duty imposed?  The ordinary answer to that question is it was imposed for a group of people who included mainly employees.  But according to the Court of Appeal, there is a qualification to that question.  If the employee who is injured is the employee whose very conduct is the sole cause of the breach of the statutory duty, for example, the employee who disregards an instruction to use a ladder or to secure a ladder safely, then the proper conclusion is that the statutory duty was not intended to give rise to a cause of action in favour of that employee.  Now, I am not asking you whether you agree with that.  I am asking you whether that is the reasoning that you have to face up to.

MR KELLY:   I do not understand that that is what the Court of Appeal is saying, your Honour.  What the Court of Appeal seems to be saying is effectively that, notwithstanding there was a breach, notwithstanding there was an injury sustained by the worker, notwithstanding that the benefit of that statute is to protect workers, in particular this worker, there was no entitlement to recover because he was solely responsible for the accident.  In considering Andar’s Case, Justice Hodgson has expressed his difficulty ‑ ‑ ‑

GLEESON CJ:   What made me think that what I expressed was the reasoning of the Court of Appeal is the quotation from Justice Mason in paragraph 34 on page 45 of the judgment of the Court of Appeal and the later statement on page 38 that that reasoning appeared consistent with the English decisions and with the proper conclusion.  Do you see the quotation from Justice Mason there?

MR KELLY:   Yes, your Honour.

GLEESON CJ:   And what he says is to avoid what seems like an absurd result you have to:

imply a limitation in the class of persons for whose benefit the statutory duties are imposed –

That is what it is about, is it not?

MR KELLY:   Yes, your Honour.

GLEESON CJ:   Right or wrong, that is the process of reasoning.

CALLINAN J:   I had the same difficulty, of course, as Justice Bryson in Andar, but my view was a dissenting view.

MR KELLY:   Well, what I do want to put to the Court is that the comments by the Court of Appeal in which they effectively state that the reasoning is wrong, but the result is right.  Now, what I simply want to say, your Honours, is that the reasoning is what produces the result and the reasoning having been decided against by this Court, one is left with how can one have the result – how can the result stand? 

Finally, your Honours, the only other matter I can put is that the statute is there for the added protection and the benefit of the workers in addition to the common law that already exists and the statute is there to protect workers in the situation that Mr Millington was.  There is nothing further.

GLEESON CJ:   Thank you, Mr Kelly.  Yes, Mr Neil.

MR NEIL:   Your Honours, the applicant did not succeed on the common law claim, as appears in the judgment of the primary judge at page 17 of the application book, paragraph 24.  His Honour said:

On the findings I have made the plaintiff’s case at common law fails either because, in the circumstances, there was no duty of care to tell the plaintiff what he already knew or if a duty could be implied it was not breached because the plaintiff was directed not to climb the ladder.

In terms of the statutory count, towards the end of that page in paragraph 26, his Honour said:

Upon the findings I have made there must, in my opinion, be a verdict for the second named defendants.  The ladder provided by the second named defendant was suitable and safe for the purpose for which it was to be used.  The plaintiff’s injury was the result, not of defective equipment but because he misused safe equipment.  The ladder was used in disobedience to instructions and in circumstances the plaintiff knew to be dangerous.

Now, that particular situation, we would submit, is covered by the principle in the English cases and of Justice Mason’s passage in Buckman that is quoted at page 45, paragraph 34.  It has not been removed by the Court of Appeal.  Indeed, the Court of Appeal says that the principle applies only in quite limited circumstances.  It does not apply in the case of a director plaintiff, it does not apply in the case of a common law claim and it does not apply in cases where there is not a coextensive or coterminous set of facts such that the only cause of the injury and the only basis for any breach of duty is that entirely of the – it applies where that is coterminous.  There is no liability.  If there is anything at all that the employer does wrong, the principle does not apply. 

So we are only dealing with very rare and exceptional cases in which cases the principle, in our submission, is essential.  As Justice Hodgson points out, what would otherwise be the case is that the applicant or plaintiff could succeed where he, the applicant or plaintiff, was the sole cause of the events, where the employer did nothing wrong, where the employer set up a safe system, where the employer provided proper and safe equipment and where there was active disobedience to the directions of the employer which would produce, as Lord Reid had said, absurdity, and as Justice Mason picks up, absurdity, and would produce, as Justice Ipp said in agreeing with Justice Hodgson, that the employee seeks to argue that the employer is liable where – this is page 49:

(a)      The employee was injured by performing an act which the employer expressly instructed him not to do.

(b)      By performing that act contrary to his employer’s express instructions, the employee caused the employer to breach its statutory duty.

It may well be that there is not a breach and it may well be that there is no causation, and we say there is no causation, but for the moment let us assume there is this breach but it is entirely caused by the employee.  It is, in effect, quite a fictitious thing to say in practice anything was caused by the employer.  Apart from the employee’s own conduct in disobeying the instructions, nothing done or omitted to be done by the employer or any person for whom it is vicariously liable brought about the employer’s breach of duty.  By performing the act in question, the employee himself breached his statutory duty.  As the employee was alone at the ladder at the time, there was nothing the employer could have done to stop him from disobeying his instructions. 

And there is the reference to Brancato, a somewhat similar situation, in which Justice Mahoney had said that there was a need for the principle to avoid ridiculous situations arising and what Justice Ipp described as what would be grossly unfair situations.  So that, in our submission, the principle as referred to by Justice Mason quoting from Lord Reid has been available in law for many years.  The statements by Justice Hodgson to the effect that the reasoning behind the principle can still survive the decision in Andar, in our submission, does not set Andar at nought, does not call it into question. 

And, in fact, Andar really is not relevant to the particular issues here, we would submit.  It does not of itself say that the principle is gone.  It does not of itself say that there are cases where the plaintiff can win in these circumstances. 

Indeed, his Honour Justice Hodgson is careful to confine the operation of the principle to these very rare and stark cases, of which there would be very few perhaps in light of the new legislation and the reduction in the number of workers’ cases.  What the applicant really seeks to argue is that liability can be found where all the facts of bringing about the events were the fault of the applicant and where there is no causation on the part of the employer, and that is the reason and the need for the principle.  If it did not survive, the absurdities or ridiculous positions or the injustices would be the result.  And thus, in our submission, the Court of Appeal was perfectly correct, if it please the Court.

GLEESON CJ:   Thank you, Mr Neil.  Yes, Mr Hewitt.

MR HEWITT:   If your Honour pleases, no argument has been sought to be addressed by the applicant to our position in the matter.  As your Honours know, we were the employer or head contractor.  We took no part in the operation.  So even if leave were granted, we should be, we would submit, excluded from the leave.

GLEESON CJ:   Thank you.  Yes, Mr Kelly.

MR KELLY:   Your Honours, simply only to say that there is a fundamental issue here as to whether or not the decision in Andar can effectively be ignored, as it was done in this case by the Court of Appeal.

GLEESON CJ:   Thank you, Mr Kelly.

We think that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter and the application is dismissed with costs.

AT 10.44 AM THE MATTER WAS CONCLUDED